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SEQUESTRATION  CASES 


BEFORH    THB 


HON.    A.    G.    MAGRATH. 


REPORT    #  V    CASES 


UNDER    Tn% 


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>cqiifstration  3lrt  of'  the  dJonfiCderiitc  ^tate;;, 


HEARD     (N    THE 

DISTRICT  COURT  FOR  THE  j'^ATE  OF  SOUTH  CARpLINA, 

IN    THI> 

CITY  OF  CHARLESTON-4.0CTOBER  TERM,  1861 

\ 


ARGUMENTS  OF  WM.  WHALEY,  NELSON  MITCHELL,  C.  RI(HAR1)>»  >:n   .uH.K> 
J.  L.  PETIGRIT,  I.  W.  HAYNE,  J.  W.  Wl  .KINSON,  akd  ED.  McCRADYrS^s,! 


TO    WHICH    IS    ADDED 


The  Opinion  of  Judge  Magrath,  in  the  ;^everal  Cases,  and  the  Sequestration i a 
Act  of  the  Confederate  States:  also,  the  Confiscation 
Act  of  the  United^.  »ates. 

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11 


REPORTED  BY  J.  WOODRUFF,  PHOXOGRAPIllC  REPORTER. 


V' : 


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A    ' 


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i. 


THE 


SEQUESTRATION  CASES, 


BEFORE    THE 


HON.    A.    G.   MAGRATH. 


REPORT  jOF    CA.SES 

UNDER    THE 

^ti\\mintm\  ^ct  Df  tk  Olonfi^ikrHtc  States, 


HEAR^    IN    THE 


DISTRICT  COURT  FOR  THESSTATE  OF  SOUTH  CAROLINA, 


T\V    THE 


CITY  OF  CHARLESTON— OCTOBER  TERM,  1861. 


xSOX  MITCHELL.  C.  RICHARDSON  MILES       ^ 


ARGUMENTS  OF  WM.  AVHALEY.  NELSON  MITCHELL,  C.  RICHARDSON  MILES 
J.  L.  PETIGRU.  1.  W.  HAYNE,  J.  W.. WILKINSON,  axd  ED.  McCRADY.  I^sqs 


r 

TO    WHICH    IS    ADDED 


The  Opinion  of  Judge  Magrath,  in  the  several  Cases,  and  the  Sequestra 

Act  of  the  Confederate  States:  also,  the  Confiscation  '.      | 

Act  of  the  United  States, 


REPORTED  BY  J.  WOODRFFF,  PHONOGRAPHIC  REPORTER. 


FtTBUISKCBID    B'^    R.EG4XJEST. 


I 


Iw 


■'^ 


th 


TABLE  OF  COXTE>-TS. 


— "i — 

PAG) 

Preface, i %..',o '.} 

Cluirgo  to  the  Grand  Jury x »■..:>'... ! 

Argunu'nt  of  \Vm.  Wlialey,  Esq. ■...;.. 9 

Aro-ument  of  Nelson  Mitchell,  Esq , 13 

Argument  of  C.  R.  Miles,  Esq.,  Aciing  District  Attor.'iev 10 

Argument  of  Hon.  J.  L.  Peiigvu 2-Z 

Argument  of  Hon.  I.  W.  Fhi^nc.    -.0 

Reply  of  Nelson  Mitchell,  Esq 3- 

Argument  of  J.  \V.  Wilkinson,  Esq., :}4 

Reply  of  C.  R.Mil.'S,  Esq  , 37 

Argument  of  Edward  McCrady,  Esq 38 

Reply  of  C.  R,  Mifea.  Esq  , 43 

Reply  of  Edward  McCrady,  Esq AG 

Opinion  of  .Tudfre  Magrath — The  Constitutionality  of  the  Sequestration  Act, ")  ,- 

Considered  and  Affirmed, -. .".s..  ) 

Opinion  of  Judge  Magrath — 'I'iie  Modes  of  Proceeding  under  the  8tli  Sec-  1  p^ 

lion  of  the  Sequestration  Act,  Considered  and  Sustained, j 

Opinion  of  Judge  Magrath — Privilege  of  Attorneys  Discussed  and  Allowed, ...63 
Presentment  of  Grand  Jury  in   the  Confederate  Court,  for  South  Carolina, ")  „„ 

October  Term,  18(51 (   ''^ 

The  Sequestration  Act  of  the  Confederate  States, 04 

Confiscation  Act  of  the  United  States, 67 

Explanatory  Letter  from  the  Serrptnw  ni  iIir  'I'reasury  of  the  United  Slates, ..(!S 


Entered  ACcoKptxo  to' the  Act  of  Conohess  or  thk  Confederate  Sr,vTi:s, 
IN  TUE  District  Coukt  of  South  Cauolixa. 
November,  18G1. 


PREFACE. 

The  arguments  of  several  of  the  Advocates  of  the  Charleston 
Bar,  in  opposition  to  Writs  of  Garnishment  served  upon  them 
under  the  Sequestration  Act,  heard  in  the  District  Court,  before 
the  Hon.  A.  Gr.  Magrath,  having  created  a  deep  and  wide-spread 
interest,  are,  together  with  the  arguments  of  Acting  District  At- 
torney C.  R,  Miles.  Esq.,  and  Attorney  General  Hayne,  also,  the 
opinions  of  Judge  Magrath,  now  offered  to  the  Public  in  the 
present  form,  with  a  view  to  facilitate  the  use  of  the  reports,  and 
render  them  more  accej^table  to  the  general  reader. 

Each  argument  has  had  the  revision  of  its  author.  The  pres- 
ent edition  has  necessarily  been  hurried  forward  at  the  urQ:ent 
request  of  Advocates  in  other  Districts  o^  this  and  the  adjoin- 
ing States.  The  more  immediate  object  of  the  publication  is  to 
preserve  an  interesting  and  valuable  record  of*  the  opinions  of 
distinguished  Jurists  upon  an  Act  affecting  nearly  every  citizen 
in  the  Confederate  States. 

J.  WOODRUFF,  Reporter. 


t 


/ 


O  H  _A.  R  GE 


DELIVERED 


TO    THE    GKAND    JUEY, 


Hon.    a.     a.     MAaRATH 


Genllemen  of  the  Grand  Jury : — I  congratulate! 
you,  that  upon  this,  the  first  occasion,  in  which  a| 
Grand  Jury  in  the  State  of  South  Carolina,  has  been 
assembled  under  the  Constitution  and  Laws  of  the' 
Confederate  t  tates  of  America  :  it  is  your  peculiar; 
fortune  to  rejoice  in  ihe  conviction,  that  your  soil 
is  freed  from  the  presence  of  that  despotic  power, 
which  in  other  States,  now  exercises  its  ruthles~ 
and  tyrannical  control.  Dreary  would  be  the  spec- 
tacle, presented  to  the  lover  of  Constitutional  Lib 
erty,  if  forced  to  consider  the  States  wiih  which 
we  were  formerly  connected;  the  places  where 
that  liberty  was  to  be  preserved;  or  the  Govern-: 
ment,  they  acknowleds;e ;  the  guardian  by  which  it 
was  to  he  defended.  If  it  was  supposed  that  the 
seven  Stales,  which  first  seceded,  and  established 
this  new  Coufederation,  were  too  impatient  of  the 
ills  to  which  they  offered  resistance;  or  too  hasty 
in  the  adoption  of  measures,  they  suppo-ed 
necessary  for  their  saft-ty :  the  events  which 
have  transpired  in  Virginia,  Maryland,  Kentucky 
and  Missouri:  would  dissipate  the  censure  which 
that  doubt  involves.  Nor  indeed  is  it  easy,  dven 
in  the  States,  where  a  profound  conviction  moved 
the  people  to  decisive  action,  under  a  sente  otl 
utter  insecurity  ;  to  realize  even  now,  that  ihei 
Government  of  the  United  Stales  as  exhibited^ 
in  Its  practice,  is  that,  which  the  framers  of  the 
Constiiutiun,  suppos^ed  they  had  so  completely 
controlled  with  safeguards,  for  the  maintenance 
of  public  liberty  and  private  rights;  that  it 
could  never  attain  the  form  of  an  irresponsible 
despotism.  Yet,  as  if  to  teach  us  in  the  organizaj 
tion  of  our  government,  how  little  reliance  there 
can  be  in  the  security  which  mere  paper  guaran 
ties  can  aflx)rd;  the  remarkable  iliu.-tration  has 
been  afforded  of  a  country,  professing  the  mainte- 
nance of  Constitutional  Liberty;  not  only  delib-' 
eraiely,  but  with  a  seeming  exultation  ;  destroy- 
ing every  sa'egiiard  with  which  that  liberty 
had  been  guarded  ;  and  devoting  itself  with  a 
willing  subjection  to  the  most  perfect  despot- 
ism, that  at  this  day,  the  civilized  world  can 
present.      A     written     Constitution,     to    support 


[which,  all  are  sworn  ;  is  openly,  palpably,  defi- 
{antly  violated.  Laws  solemnly  promulgated  ; 
'are  deliberately,  wantonly,  forcibly  trampled  under 
foot.  Franchises,  purchased  with  the  blood  of  the 
best  and  purest  men  of  their  time  ;  are  ruthlessly, 
recklessly,  brutally,  divested.  Oaths,  which  have 
been  taken  in  the  presence  of  the  God,  whose 
anger  was  invoked  in  their  violation;  have  been 
mockingly,  carelessly,  cruelly  broken  and  disregar- 
ded. The  right  of  private  opinion,  the  freedom  ot 
the  press,  the  orivilege  of  debate,  have  been  indis- 
criminately questioned,  threatened  and  denied. — 
The  obligations  of  public  duty  :  the  requirements 
of  private  lile,  have  been  unheeded  and  contemned. 
And  in  the  course  of  these,  and  accompanying  the 
aitempt  to  reduce  to  subjection,  those  who  have 
refused  to  acknowledge  this  reign  of  misrule  and 
misery;  have  been  developed  scenes  at  which 
humanity,  virtue  and  religion  are  set  at  naught. 
At  an  age  when  civilization  reached  iis  highest 
point:  when  war,  by  general  consent,  was 
stripped  of  many  of  the  horrors  which  in  ofher 
days  sickened  the  gaze  of  him;  who  after  the  lapse 
of  years,  revived  the  misery  it  produced  in  the 
narrative  which  he  perused:  when  the  improving 
influences  to  which  our  race  was  exposed,  led  to 
the  conviction;  that  no  time  nor  circumstance 
could  reproduce  the  horrors  which  in  other  days 
had  been  developed  :  we  have  lived  to  see  the 
vanity  of  the  hope;  the  unreal  character  of  the 
improvement  which  was  supposed  to  have  been 
reached.  There  have  been  scene*  enacted,  and 
practices  adopted,  in  the  progress  of  this  ^var; 
by  the  army  which  acknowledges  its  obedience  to 
the  President  of  the  United  States :  that  exceed 
in  atrocity  and  horror,  any  which  have  been 
recorded  in  any  age  or  with  any  people.  No  fancy 
could  have  suggested  sni-h  pictures,  as  have  been 
displayed  in  the  terrible  reality  of  these  times. 
They  indicate  a  depth  of  moral  depraviiy  and  so- 
cial wickedness,  beyond  conception.  Had  the  un- 
happy victims  of  these  excesses  been  men, 
who  in  anv  manner  might  by  their  conduct  have 
excited;  though  it   could  not  have  justified  or  ex- 


CHARGE  TO  THE  GRAND  JURY— MAGRATH,  JUDGE. 


uused  such  cruelties:  it  would  have  made  a 
narrative,  which  elsewhere  it  would  be  diffic-ult  to 
believe.  But  it  has  been  with  women;  and  with 
those  who  could  not  resist;  that  the  most  wanton 
and  cruel  outrages  have  been  practised.  You  haye 
heard  of  them :  have  read  of  them :  perhaps 
have  listened  to  the  testimony  of  those,  who 
were  witnesses  of  the  truth  of  such  occur 
rences.  It  is  for  you  ;  for  all  who  live  in  these 
States,  now  united  in  the  bonds  of  a  new  Confed- 
eration, lo  profit  by  the  picture  ;  dark,  cruel  and 
revoliing  as  it  may  h  -.  The  line  of  separation  be 
tween  the  Conlederate  Slates  of  America  and  the 
United  States;  is  now  widened,  deepened,  ami 
made  firever  ineffaceable.  To  li^e  ever  again 
under  the  authority  of  a  common  government 
with  those  who  have  ihus  sinned,  would  be  to  be- 
come worse  than  inferior  \o  ihose,  who  have! 
invoked  the  sternest  indignation,  which  can  be 
visited  upon  any,  who  neglect  every  duty, 
violate  every  obligation,  scorn  every  sanction  ; 
which  the  laws  of  God  or  man,  provide  for 
the  welfare  and  happiness  of  our  race.  From  the 
coatamiuHtion  which  must  ensue  from  connection 
with  those,  who  practise  such  excuses,  you  are 
happily  free.  You  have  been  f)rinnate  enough  to 
have  broken  the  thrull  which  so  cruelly  con 
fines  others;  with  little  of  .suH'ering  lo  yourselves; 
save  that  which  is  produced  by  your  sympathy 
with  those,  who  sutler  in  the  attempt  to  follow,  in 
the  course  you  have  pursued. 

But  lo  have  thrown  down  a  Government  which 
oppressed  you  is  not  the  only  means  by  which  you 
can  secure  thHt  happiness,  for  the  promoiion  oi 
which  all  Government  is  instituted.  That  nevercan 
be  secured  but  by  the  operation  of  a  good  Govern 
ment.  Between  the  evil  of  a  vicious  Government, 
and  the  misery  ol  no  Governpient.  is  a  choice  to 
which  ihe  people  should  submit.  The  blessing  ol 
a  good  Government  may  ever  be  secured  by  those 
who  prepare  themselves  to  undergo  the  suffering, 
which  is  soiiietinies  involved  in  the  eflort  to  obtain 
it.  Acting  upon  this  conviction,  the  State  of  South 
Carolina  very  soon  afier  its  separation  from  the 
United  Slates,  in  council  with  other  Slates,  adopt- 
ed a  Provisional,  and  then  a  Permanent  form  o( 
Government:  in  which  the  errors  of  the  past  were 
invoked  to  provide  against  their  recurrence  lU  the 
luture;  and  every  salesiiard  was  adopted,  which 
the  experience  of  ihe  past  suggested,  as  necessary 
for  the  welfare  of  those  M-ho  were  to  be  subject  to 
its  operations. 

It  is  in  connection  wiih  one  of  these  departments 
of  Government,  that  you  are  now  assembled.  And 
in  the  capacity  of  a  Grand  Jury,  you  have  at  this 
time  duties  lo  pertbrm,  which  consiiiute  in  them 
selves  no  inconsiderable  addition  to  those  res;'on 
sibilities, which  always  are  involved  in  the  functions 
properly  pertaining  lo  the  office  for  which  you 
have  been  st  lected.  To  these  in  the  first  place  I 
shall  now  direct  your  atleulion. 

The  subjects  which  will  engage  your  atlenlion 
are  such  as  afiect  the  public  welfare:  and  that  wel- 
fare is  sought  through  the  laws  which  are  en 
acted  by  the  Legislative  department  of  the  Gov- 
ernment. That  department  is  at  this  time  admin- 
istered by  the  Congress  of  these  Confederate 
Slates. 

Yo^  are  bound  to  consider  with  care  and  respect 
whatever  has  been  done  by  this  Congress.  It  has 
been  engaged  in  ihe  discharge  of  an  arduous  and 
responsible  service.  Its  work  was  intended  for 
the  welfare  of  the  people  whom  it  represented 
Forced  to  grapple  with  circumstances  of  rare  and 


jiuiposing  magnitude;  the  necessities  which  con- 
[trolled  its  deliberations  in  secret,  deprived  it  to 
some  extent  of  that  aid  which  is  experienced  iu 
the  progress  of  legislat'on,  by  the  lesiimony  ot 
those  who  are  particularly  .afTected  by  the  legisla- 
tion which  may  be  in  pr>'gress.  Ii  has  now  to  a 
certain  extent  been  made  public;  and  if  you  have 
aught  of  suggestion  to  make,  concerning  any  part 
of  It  which  you  think  needs  amendment,  it  is  a 
part  of  your  privilege  so  lodo. 

The  first  matter  concerning  which  I  desire  to 
direct  your  attention  is  that  which  relates  to  alien 
enemies.  In  this  Act  are  but  two  elements:  one 
which  determines  the  expulsion  of  the  alen  enemy: 
the  other  which  provides  tor  his  admission  within 
the  territories  of  the  Confederate  States:  and  his 
becoming  entitled  to  ihe  protection  which  is 
vouchsafed  to  citizens  of  the  Confederate  States. 

Every  nation  or  Siale,  when  engajied  in  war,  has 
the  undoubted  right  to  require  the  citizen,  denizen 
or  subject  ol'  the  hostile  power,  to  depart  (rom  its 
limits.  It  lias  appeaietl  necessary  to  the  Congress 
of  the  Conlederate  Slates  that  it  should  exercise 
this  right:  and  it  has  done  so.  In  pursuance  ol 
its  act,  the  President  of  ihe  Confederate  Stales  has 
issued  his  proclaniaiion  requiring  ihose  who  are 
citizens  of  ihe  United  States,  and  acknowledge  ils 
government;  to  depart  from  the  Conf.  derate  Stales 
after  the  expiration  ol  foriy  days  from  the  date 
thereof  The  act  provides  iIihI  it  shall  be  the  duty 
o(  the  several  Courts  of  the  Confederate  Slates, 
and  of  each  State,  having  criminal  jurisdiction; 
upon  complaint  of  such  alien  euemv,  being  resi- 
dent or  remaining  within  the  Conlederate  States, 
contrary  to  the  act  and  the  proclamation  ol  the 
President  of  Confederate  Slates;  to  cause  such 
alien  to  be  apprehended:  and  niter  examination 
thereof,  to  order  him  removed  from  the  territory  ol 
the  Conlederate  Slates  :  or  to  lie  otherwise  dealt 
with  or  restrained;  and  lo  imiirfson  or  secure  him 
until  the  order  for  his  removal  shall  be  prepared. 
The  same  act  provides  that  duiing  the  existing 
war,  citizens  of  ihe  United  States,  who  shall  duly 
give  notice  of  their  intention  'o  become  citizens  ol 
the  Confederate  States,  and  acknowledge  ihe  gov- 
ernment thereof;  shall  not  be  liable  to  he  dealt 
with,  as  is  provided  for  alien  enemies  The  Act  is 
of  a  public  characier,  relates  lo  a  subject  of  much 
importance,  and  deserves  10  be  considered  by  >ou. 
The  period  during  which  citizens  of  the  United 
States  were  allowed  to  remain  within  the 
Confederate  Stages,  has  expired.  All  males  of  14 
vears  of  age  and  upwards,  who  are  citizens  of  ihe 
United  States,  and  adhere  lo  its  government,  must 
now  depart,  under  pain  of  being  treated  as  alien 
enemies.  This,  however,  does  not  apply  lo  those 
citizens  of  the  United  Slates  residing  within  the 
Confederate  States,  who  intend  to  become  citizens 
thereof,  and  shall  make,  in  due  form,  a  declaration 
of  such  intention,  and  acknowledge  the  Govern- 
ment of  the  ConCederste  States.  The  proclamation 
of  the  President  declares  it  the  duty  ol  the  officers 
of  the  Confederal'*  Stales  to  make  complaint 
against  any  alien  who  may  be  su'ject  to  the  pro- 
[visions  of  this  Act:  and  this,  though  not  declared, 
is  also  a  part  of  the  duty  of  every  citizen.  The 
|next  Act  to  which  I  am  specially  jdirected  to 
bring  to  your  notice  is  the  Act  of  Sequestration 
and  Indemnity.  It  is  the  right  of  a  Stale  or  nation, 
at  the  commencement  of  hostilities,  to  determine 
the  conduct  it  will  observe  towards  the  persona 
and  property  belonging  to  the  State  or  Nation  with 
which  it  is  engaged  in  war.  So  far  as  persons  are 
concerned,  the  Act  concerningalien  enemies  which 


THE  SEaUESTRATIOX  ACT. 


has  been  already  brought  to  your  notice,  makes  in 
such  cases  the  provision  which  has  been  loiisid 
ereil  neci^s»Hry.  So  I'ar  as  the  pro|ieriy  of  alien 
eneniifs  is  concerned,  ihe  Seqnestraiioii  Aci  is  in- 
teuiled  lo  regulate  the  di-pos.tioa  of  \l.  in  the 
Seqiiesirdiion  Ac  ,  the  esiutes,  |)ro|>eity  and  elTecl* 
ot'  alien  enemies.  coHijirise  all  the  subject^  of  pro- 
perly, wliicii  .in  alien  n»Hy  orean  have.  Under  ordi 
a\ry  circumsiances,  if  a  tfeqiie>traiion  Act  were 
considered  proper,  exception  would  probal)ly  have 
been  made  lo  ilie  enunierauoii  found  in  ihe  Act, 
and  declared  lo  I  e  seqiie*traied.  And  prolialily.had 
an  excepiion  been  mnde,  deht.-*  due  frmn  indi- 
viduals who  are  citizens  of  the  Ccnf. derate 
Slates,  to  ihose  who  are  ciiizens  of  the  United 
Slate.",  would  have  been  excluded,  li  lia-^  un-i 
questionaiilv  been  hitherto  considered  mi  ag-i 
gravalion  of  the  evils  of  war,  to  trench  ujiou  the 
privaie  contracts  of  iiuli  viduals ;  and  it  ha.>' 
been  denied  ihat  the  coullscaiion  of  delvts  due  to! 
private  individuals,  wns  consistenl  with  the  usiigey 
of  nations  or  the  principles  of  public  law.  Bull 
whatever  may  have  bten  thought  of  the  policy  ut^. 
distinguishing  this  species  ol  property  fioin  any 
other;  it  .-eems  never  lo  iiavc  been  doubled 
in  the  United  Stales,  that  the  same  rules  were  ap  I 
plicalile  to  debts  as  to  otlier  kind  of  properly;  and 
that  whenever  it  should  .-ceiii  to  a  Stale  or  Nation  ne 
eessary  or  pro;)er  tocontiseate  or  sequesiraie  iheni,! 
that  iheexefcise  oflhat  power  woulJ  iiotbe  alfrciedj 
l)y  the  nature  of  the  propefty  upon  wliich  it  wa^! 
intended  lu  oiierute.  In  lhi>  case  the  GoverninentI 
ul  the  Conlederaie  Slates  has  declared  ihe  cau-e> 
which  have  impelled  it  to  this  legislation  Thej 
Congress  ot  the  Coiifedera'e  Siates  has  declued  ii| 
10  be  the  only  protection  from  the  wrongs  which' 
have  been  consummaied  by  tlie  Government  of  the 
United  Stale,-;  in  its  dejiaiture  from  liie  usages  ot 
civilized  warlare,  by  conhscatiiig  and  destioyins 
the  property  of  the  people  of  the  Confederate 
Slates  of  all  kind-i,  whether  used  I'or  nuliiary  pur 
poses  or  not.  Ii  stands,  itiereture,  upon  the  basis 
of  a  siern  necessity :  avowed  as  a  necessary  and 
unavoidable  measure  of  retaliation.  Its  end  is  not 
to  enrich  the  Tieasury  of  the  Confederate  States; 
but  to  protect  the  people  of  the  Confederate  Stales, 
by  giving  to  them  such  indemnity  for  their  losses 
a.s  may  resulUroni  its  operation  :  and  in  .hus  bring- 
ing liome  to  tho-e  who  live  in  the  United  States, 
tiie  conviction  ol  the  suffering  which  the  Govern- 
nienl  is  bringing  upon  themselves;  restrain  the 
wanton  excesses  which  have  been  so  generally 
committed.  That  this  purpose  of  the  Confederate 
Congress  lo  retaliate  was  necessary:  and  that  it 
was  the  only  hope  fir  protection  against  what  ha- 
been  justly  termed  the  wanton  excesses,  which 
have  marked  the  departure  of  the  Government  ot 
the  Confederate  States  from  the  usaaes  of  civilized 
warlare;  needs  not  to  be  deinonsiraled  to  those 
who  have  kept  pace  with  the  progress  of  events. 
It  has  proceeded  from  one  instance  to  another. 
until  it  has  culminated  in  that  unparalleled  exhibi- 
tion of  wrong,  when  a  military  commander  would 
not  only  attempt  to  extinguish  the  right  of  proper 
ty ;  but  at  the  same  time,  in  the  person  of  the! 
emanoipated  slave,  ."eek  a  new  instrument  of  ven 
geance,  with  which  still  to  whet  the  appetite  for 
misery  and  desolation. 

Bui  sweeping  as  may  have  been  the  general 
provisions  of  this  Act,  ihe  Congres*  of  the  Conled- 
eraie States  has  preserved  the  public  faith  of  ihe 
country  it  represented.  And  a  special  proviso  ex- 
empts from  the  operation  ot  the  Act,  the  stocks  and 
other  public  securities   of  the   Confederate  States, 


or  of  any  State  ol'  the  Confederacy,  held  or  owned 
'i>V  an  alien  eiiemv ;  or  any  debt,  obligation  or 
loan,  due  from  the  Confeder.ile  Government  or  any 
of  the  States,  lo  such  alien  enemy.  To  none  ol 
liiese  do  the  provi-ions  of  the  Act  apply. 

All  and  every  the  lands,  lenemeiils  and  heredita- 
ineiits,  (ioods  and  chatiels,  rights  anti  credits,  with- 
in the  Contederaie  States,  and  every  right  and  in- 
terest therein,  held,  owned,  pos-essed  or  enjoyed, 
iiy  or  for  an  alien  enemy  since  the  21st  May,  1861, 
je.xeept  such  debts  due  to  an  alien  enemy  as  have 
brei  jiaid  into  the  Treasury  ol  the  Contederaie 
iStaies.  prior  lo  ilie  passage  of  the  Act,  are  by  the 
,ieriiis  of  the  Act  stquesiraied. 

I  Under  the  provisions  of  the  4ih  section  of  this 
|Act,  it  becomes  the  duty  of  the  several  Judges  ol 
Colli  deracy  to  give  this  Act  specially  in  charae  to 
their  Grand  Junes  of  these  Conlederate  Staies  : 
land  It  is  made  the  duty  of  the  Grand  Jury,  at  each 
jsitting,  well  and  truly  to  enquire  and  report,  all 
lands,  tenements,  heredilimenis,  goods  and  chai- 
tels,  rights  and  credits,  and  every  interest  therein, 
|Wiihin  the  jurisdiciion  of  such  Grand  Jury,  held  by' 
[or  (or  an  alien  enemy. 

j  Under  the  authority  for  that  purpose  given,  Re- 
jCeivers  have  been  appointed  throughout  the  State. 
|And  they  have  been  diligently  employed  in  the 
discharge  ot  the  onerous  and  responsible  duty  they 
have  ihiis  assumed.  They  will  be  directed  to 
attend  you  whenever  you  desire,  and  to  explain  to 
you  the  modes  ol'  proceeding  under  which  they 
administer  the  law:  and  will  receive  from  you 
such  information  or  suggestions  as  you  may  consi- 
der necessary  to  give 

it  will  be  a  part  of  your  duty  to  consider  not  only 
the  modes  in  which  the  law  is  admini-tered ;  but 
the  provisions  aigo  ol  the  several  seclions  of  the 
Act.  It  maybe  tr/Ml  the  practical  operation  of  ihe 
Act  will  suggest  some  mailers  which  may  be  aptly 
introduced  to  modity  or  change  the  provisions  now 
of  lorce.  li  is  your  du'y,  to  regard  the  Act  as  a 
measure  of  legislation;  intended  lor  the  purpose 
of  reiHliation;  and  prepared  according  lo  the  best 
and  safest  guides  which  could  be  procured  by  the 
Congress  of  the  Confederaie  States.  Bui  I'or  it 
there  was  probably  little  which  could  be  referred 
to  as  precedent.  And  if  in  the  endeavor  to  make 
effectual  the  plan  of  retaliation,  there  should  have 
been  adopted  any  matter,  which  bears  heavily 
upon  the  citizen  of  the  Conlederate  Slates,  it 
should  be  not  the  subject  matter  of  complaint  or 
censure;  but  the  occasion  lor  a  frank  suggestion 
of  the  dilficulty;  and  wiih  it  also,  the  suggestion  ot 
the  manner  in  which  the  difficulty  couldbe  avoided. 
In  this  Act,  that  which  may  be  the  chief  source  ol 
apprehension  in  relation  loits  operation,  is  not  only, 
of  course,  subject  to  amendment  and  moditicaiion 
by  future  legislauon:  but  is  moreover  controlled 
and  restrained  by  such  legislation  as  ench  Slate 
may  think  proper  to  ordain.  Whatever  may  be 
the  construction  which  slr.ill  be  given  to  this  por- 
tion of  the  Act,  whenever  a  case  shall  arise,  in 
which  that  construction  shall  be  involved:  and 
until  ihen,  construction  without  the  aid  which  ar- 
gument affords,  would  l)e  imprudent  and  unneces- 
aiy:  it  is  ([uie  certain  ih  u  the  Congress  ol  iho 
Confederate  Stales  plainly  determined,  to  give  lo 
each  SlHle  the  power  to  relieve  its  citizens  fronn 
any  oppressive  operation  of  this  Act;  by  recoasiz- 
ing  as  essential  portions,  such  laws  as  the  several 
States  have  passed,  or  may  pass,  in  aid  of  such 
citizens  as  may  be  debtors.  It  would  be  expecting 
too  much  of  any  deliberative  body  that  circutn- 
tnnced  as  has  been  the  Congress  of  the  Confcder- 


CH/VRGE  TO  THE  GRAND  JURY— MAGRATH,  JUDGE. 


ate  Stales,  it  could  provide  (or  every  contingency, 
amicipate  every  ditficulty,  and  avoid  every  error. 
ll  is  entitled  to  the  aid  ot  every  good  (Mtizeii  in  the 
effort  to  perfect  what  it  may  atlempt.  It  cannot 
be,  with  justice,  presumed  to  have  any  purpose 
distinct  from  the  good  of  the  people  it  represents: 
and  it  IS  eminently  entiiled  to  the  aid  of  that  people 
in  the  labors  which  occupy  its  attentions.  Among 
the  many  considerations  which  in  after  times,  will 
give  to  this  body  a  dignity  not  inferior  tothai  which 
any  political  body  has  ever  posses>^ed;  wi.lbethe 
voluntary  sacrifice  it  has  made  of  individual  pro-; 
minence  or  excellence  in  ail  of  its  deliberations. 
When  it  closed  the  door  of  the  hall  in  which  it 
counselled,  the  most  gifted  consented  to  obscure 
the  brilliant  display  of  his  talent:  the  most  labori- 
ous covered  up  the  evident^e  of  his  indiviiliial 
energy.  Each  made  his  sacrifice  of  the  public 
exhibition  of  his  peculiar  excellence;  and  consented 
that  what  he  said  or  what  he  did  should  only  be 
known  and  felt,  in  the  common  result  of  the  com 
nion  labor.  Other  positions  in  lile  may  tor  the  time 
cast  around  their  occupants  a  more  brilliant  light 
But  in  alter  times,  when  we  come  to  consider  thel 
events  of  this  change  of  government,  no  teiUure! 
will  be  more  prominent,  than  this  signal  and  per-i 
haps  unequalled  exhibition  of  the  .••acrifice  of  indi-i 
vidual  hopes,  wishes  and  a>piratioiis  :  and  the  ab- 
solute exiinguishnient  of  selfish  aspirations  and 
suggestions:  which  have  marked  the  conduct  ot 
tho?e,  who  composed  this,  the  first  Congress  of  the 
Confederate  States. 

The  next  matter  to  which  I  shall  direct  you'" 
attention,  is  the  law  of  the  Confederate  States 
concerning  the  privateering  system.  Upon  another 
occasion  I  have  said  all  that  wa.s  necessary  lor 
me  to  say  upon  the  lawfulness  of  this  in.*trumen- 
tality  in  limes  of  war.  Since  the  passage  of  the 
law  of  the  Confederate  Stales,  concerning  i)riva 
leering,  the  Congress  of  the  Confederate  States 
has  declared  the  principles  by  which  the  Confeder- 
ate States  of  America  will  be  governed  in  its  in- 
tercourse with  the  rest  of  mankind.  And  in  thai 
declaration  has  affirmed  certain  declarations  of 
the  conference  at  Paris,  between  the  represenla  ; 
lives  of  Great  Britain,  Austria,  France,  Prus.Nia.i 
Russia,  Sardinia  and  Turkey,  on  the  16lh  A|iril  i 
1856. 

In  this  declaration  the  right  of  privateering  isj 
maintained,  as  long  established  by  the  practice.; 
and  recognized  by  the  Law  of  Nations.  And  con- 
jiistently  therewiin  three  of  ihe  pioposiiions  of  the 
Conference  at  I'aris  are  affirmed.  1.  That  a  neu 
Iral  flag  covers  enemy's  goods,  with  the  excep- 
tion of  contraband  of  war.  2.  That  neutral  goods, | 
With  the  exception  of  contraband,  are  not  liable  to 
capture,  under  the  enemy's  flag.  3.  That  block- 
ades, to  be  binding,  must  be  eflectual:  that  is 
maintained  by  a  force  suflicient  really  to  prevenij 
access  to  the  coast  of  the  enemy. 

The  two  propositions  which  declare  the  immuni- 
ty of  enemy's  property  in  neutral  vessels,  and 
the  immunity  of  neutral  property  in  enemy's  ves- 
sel, are  the  widest  and  broadest  recognition  of 
neutral  rights  ever  professed  It  is  the  peculiar 
fortune  o('  these  Confederate  Slates,  the  latest 
independent  Power  which  has  claimed  its  place 
Bmong  the  fiimily  of  nations;  not  only  to  have 
professed,  and  that  loo  during  the  progress  of  a 
War;  ftie  principles  which  European  Nations  had 
declared  essential  to  the  welfare  of  nations  :  but 
^  moreover,  amid  circumstances,  which  made  the 
•  maintenance  of  these  principles,  in  direct  cooflu^i 
with     present    inierests,   steadily   to    have    main. 


i  tained  in  practice,  what  they  had  professed  in  the- 
ory to  be  correct.  And  in  Ihis,  the  Confederate 
SiHies,  have  a  source  o/  legitimate  pride  Other 
Nations  or  Slates  at  the  close  of  exhausting  war, 
or  in  the  enjoyment  of  peace,  have  professed 
the  adoption  of  rules  of  conduct  which  tht-y  would 
observe.  But  it  has  loo  oti^n  happened,  thai  wiien 
^•ircumsiances  called  for  the  application  cf  the 
rules  so  professed,  they  have  yieldrd  to  a  present 
pressure,  and  ignored  what  they  had  approved. 
I  '-'o  have  come  up  to  the  promulgation  of  these 
principles,  and  to  have  adhered  to  ihein,  is  the 
evidence  Ola  degreeof  public  faith,  and  national  in- 
tegrity, of  which  I  have  reason  to  speak;  and  you, 
reason  to  exult  And  this  satisfaction  is  not 
without  other  considerations  at  this  lime  of  more 
than  ordinary  interest.  The  declaration  of  the 
principles  now  referred  to,  maintained  as  it  has 
been  in  practice,  by  lhe»e  Confederate  States, 
entitles  them  to  regard  with  interest,  Ihe  manner 
in  which  European  Powers,  will  on  their  part 
observe  that  porli-on  of  the  declaration  at  Pfiris, 
which  deteriiiiufs  their  righis  as  to  themselves, 
'and  iheir  duties  as  to  other,  in  the  case  of  a  block- 
ade, which  violates  the  cssentiai  conditions 
•hey  hive  de  "lared,  necessary  for  its  validiiy. 
Tiieir  (aiili  is-  pledged  to  the  enforcement  of  the 
consequences,  which  result  fiom  a  violation  ot 
what  they  have  declared  is  their  sense  of  the 
International  Law  of  the  civilized  world  upon 
ihis  subject.  And  if  they  have  received  lioiu 
the  Coniederate  Stales,  a  recogniiion  of  cer- 
tain principles,  which  they  had  previously  been 
pledged  to  maintain  ;  it  would  not  be  easy  to 
iin(lers.tand  how  the  reciprocal  obligation  could 
be  avoided  by  them  ;  by  which  having  ac- 
cepted, from  these  Stales  certain  stipulations 
which  were  sought  by  them;  they  became  bound 
by  every  principle  of  moral  law  and  public  laith,  to 
enforce  the  principle,  which  circumstances  had 
devolved  upon  them  to  maintain.  A  proposilirjn 
so  clear,  as  that  the  Confederate  States  are  eniiiled 
to  receive  from  European  Powers,  which  have 
had  an  understanding  with  these  States,  of  certain 
riili-s  of  public  conduct;  their  performance  of  so 
imuch  of  the  obligations  as  rested  upon  them;  is  too 
()lain :  loo  coiisisient  wiih  truth,  reason  and  jusiico 
jto  need  demonstration  further  than  is  couiained  iii 
Jits  simple  statement. 

Of  these,  the  three  leading  measures  of  public 
legislation,  to  which  I  would  direct  your  attention. 
It  will  well  become  you  lo  consider  them  in  iheir 
practical  operations,  and  from  this  stand-point 
suggest  such  amendments,  as  will  seem  to  you 
necessary.  The  true  end  of  such  legislation,  and 
indeed  of  any  legislation,  is  seldom  reached,  until 
by  the  lest  of  its  praciice,  experience  guides  those 
who  are  charged  with  the  duty  of  framing  our  laws. 
And  when  the  result  of  such  experience  can  bo 
derived  frtun  sources,  which  are  freed  from  any 
other  influences  than  such  as  arise  from  a  sense  ot 
public  duty;  it  affords  to  those  who  are  to  be  guided 
by  if,    invaluable  aid. 

The  Judiciary  Act  ofthe  Confederate  Congress, 
section  37,  provides,  that  until  otherwise  provided 
by  law  of  Congress,  the  laws  of  the  Untied  States, 
in  regard  to  crimes  and  oftences,  and  to  the  mode 
of  procedure,  praciice  and  trial  in  all  criminal 
cases,  shall  be  in  force,  and  form  the  rule  of  prac- 
tice and  decision  in  the  Confederate  Courts;  and 
where  there  is  no  such  law  governing  the  practice, 
then  the  rule  and  course,  shall  conform  as  nearly 
as  practicable,  to  the  jractice  established  by  law 
of  the  Slate  Court  of  highest  original  juri»dictiODi 


8 


THE  SEaUESTRATION  ACT. 


in  wliith  the  District  Court  s.iis.  And  this  provis- 
ion shall  extend  to  the  rules  of  evidence  and  mode 
of  examining  witnesses  in  such  cases. 

Among  the  cnnies  and  offences  whici)  it  will  be 
your  duty  to  inquire  into;  and  upon  such  evidence 
as  may  be  presented  to  you;  determine  whether 
thay  shall  undergo  investigation  ;  the  first  to 
which  I  shall  invite  your  aitenlion  is  the  crime  ol 
treason. 

The  enormity  of  this  crime  ;  and  the  abuses 
which  in  former  times  were  practiced  under  color 
of  this  cl  arge  ; 'led  to  its  incorporation  into  the 
Constitution,  and  the  description  (herein  of  iis  ele 
ments.  I'y  the  Constituiioii  it  is  declared  to  con- 
sist in  levying  war  against  this  Confederacy,  or  in 
adhering  to  its  enemies,  giving  them  aid  and  com- 
fort. And  It  is  in  the  same  Constitution  provided 
that  no  one  shall  be  convicted  of  treason,  unless 
upon  the  testimony  of  two  witnesses  to  the  same 
overt  act;  or  on  confession  in  open  Court. 

It  will  be  observed,  that  treason  may  not  only 
be  committed  by  levying  war,  but  by  giving  aid 
and  comfort  to  the  enemies  of  the  Confederate 
States.  And  that  aid  or  comfort  which  will  consti 
tute  treason,  may  consist  of  any  act  done  which 
tends  to  support,  sustain  or  encourage  the  public 
enemy.  The  supply  of  provisions,  the  extension 
of  private  information,  the  communication  of  such 
matter  as  will  be  of  use  to  the  enemy,  may  become 
treason. 

It  is  not  necessary  for  me  at  this  time  to  enter 
with  you  into  a  muuite  examination  of  the  circum- 
stances which  distinguish  that  levying  of  war 
which  constitutes  treason;  from  that  forcible  at- 
tempt to  prevent  the  execution  of  a  law,  which  is 
punished  as  a  lesser  offence. 

It  will  be  sufficient  at  this  time  lo  say  that  to 
constitute  this  species  of  treason,  there  must  be 
the  actual  levying  of  war.  Simply  to  enlist  men, 
who  are  not  assembled,  although  the  purpose  ol 
enlistment  be  to  attempt  the  subversion  of  the 
government,  is  not  treason.  The  war  must  be 
actually  levied:  the  mere  intent,  however  well 
calculated  to  subject  to  li.e  scorn  of  bis  fellow 
men,  and  the  lesser  punishment  which  the  law 
provides,  hiin  who  brands  with  undying  ii,faniy 
his  name,  as  associated  with  those  wiu)  war  upon 
their  country,  is  yet  not  treason,  as  defined  by  the 
Constituiioii  and  Lav/s  of  the    Confederate  Stales 

The  second  species  of  treason,  which  consists 
in  giving  aid  and  comfort  to  the  enemy,  may, 
however,  at  this  time  be  somewhat  more  lully 
explained.  And,  perhaps,  that  explanation  could 
not  be  better  given  than  by  illustrations  of  whai 
have  been  considered  as  giving  aid  and  comfort. 
To  deliver  up  a  prisoner  or  deserter:  to  supply  the 
enemy  with  provisions:  to  communicate  such 
intelligence  as  will  be  of  use  to  the  enemy,  may  be 
cases  of  treason  But  in  this  species  of  treason, 
different  from  that  which  consists  in  levying  war, 
the  intent  accompanying,  under  certain  circum 
stances,  the  unexecuied  attempt  lo  give  aid  and 
comfort,  may  become  treason.  To  carry  provi>ions 
towards  the  enemy  with  intent  to  supply  them, 
will  be  treason,  although  that  intention  was  de- 
feated. 1  have,  for  the  sake  of  illustration,  placed 
the  forcible  resistance  to  a  law,  in  contra  distinction 
to  treason.  But  it  would  not  be  proper,  because 
of  the  inference  which  might  be  deduced  from  it, 
to  pass  it  over  without  explanation.  If  the  con 
spiracy  is  for  the  purpose  of  making  a  general 
and  public  resistance  to  a  law  of  the  Conlederaie 
States:  or  to  subvert  its  Constitution  ;  and  be  ac- 
companied with  force,  it   would  be   treason.     The 


object  of  the  conspiracy  must  be  to  eflect  something 
|of  a  public  nature  If  tie  end  for  which  such 
^conspiracy  has  been  formed  be  the  removal  of  seme 
private  grievance,  the  parlies  implicated  in  it  may 
be  felons,  but  not  traitors. 

The  constitutional  provision,  that  there  must  be 
'two  witnesses  to  the  overt  act,  does  not  apply  to 
the  investigation  of  the  case  before  a  Grand  Jury. 
Upon  this  subject  there  has  been  a  difference 
expressed,  l)ut  the  weight  of  authority  support* 
the  proposition  as  now  stated  to  you. 

Among  the  other  matters  which  will  be  brought 
to  your  notice,  are  (certain  charges  against  some  ot 
the  ollicers  and  crew  of  a  vessel  of  the  Confeder- 
ate States.  The  witnesses  who  will  be  examined 
by  you,  will,  by  their  testimony,  satisfy  you  how 
tar  the  offence  charged  against  the  prisoners,  is 
jsusiained.  I  do  not  consider  it  necessary  lo  say  to 
iyou  more  than  that  if  any  seaman  or  other  person 
upon  the  high  seas,  shall  confederate,  or  attempt, 
jor  endeavor  to  corrupt  any  commander,  master, 
officer,  or  mariner,  to  yield  up  or  run  away  with  a 
ship  or  vessel  of  the  Confederate  States;  or  shaiP 
lendeavor  to  make  a  revolt  in  any  ship  or  vessel: 
or  to  create  a  mutiny:  or  combine,  conspire,  or 
^confederate  with  any  person  or  persons  to  make  a 
jrevolt  or  mutiny :  he  or  they  shall  in  so  doing,  vio- 
jlate  the  law  of  the  Confederate  States  ;  and  upon 
conviction  will  incur  the  penalties  provided  for 
such  violation. 

There  are  other  matters,  which,  during  the  term 
it  will  be  proper  for  me  to  bring  to  your  notice :  but 
at  this  time,  I  will  not  detain  you  longer  than  to 
make  to  you  a  few  observations  upon  your  general 
duties.  You  are  clothed  with  power,  necessarily 
great;  because  were  that  power  limited  your  pri- 
vilege, and  therefore  your  usefulness,  would  be. 
diminished.  To  the  end  that  your  action  should  be 
free,  your  deliberations  are  not  controlled.  But 
ihe  fact  that  you  sit  in  secret,  and  without  a  cen- 
sor, should  be  and  will  be  to  you,  significant  of  the 
high  responsibility  you  assume.  You  reflect  nei- 
I  her  the  malice  of  individuals,  nor  the  favor  ofgov- 
ernment.  The  one  you  should  never  admit;  the 
other  can  never  intrude;  upon  your  deliberations. 
What  you  determine  as  proper,  you  so  announce: 
but  the  oath  you  have  taken  imposes  upon  you  the 
obligation  of  secrecy,  as  to  all  matters  of  opinion, 
expressed  in  your  deliberations. 

When  you  investigate  charges  of  a  violation  of 
law,  you  should  bear  in  mind,  that  you  are  not  se- 
lected to  determine  the  fir.al  question  ol  guilt  or 
innocence:  but  to  consider  whether,  upon  the  evi-'^' 
dence  submiued  lo  you,  the  case  is  sufficiently 
proved  lo  cause  you  to  recommend  a  more  per- 
fect investigation  of  it.  But  in  so  doing,  you 
are  still  carefully  to  consider  the  evidence  which 
is  submitted  to  you.  It  must  be  the  evidence 
of  facts:  witnesses  must  speak  of  that  which 
they  know.  The  institution  of  a  Grand  Jury, 
the  great  bulwark  which  first  opposes  itself  to 
the  attempt  of  government  to  oppress  the  citizen; 
would  be  stripped  of  iiiuch  of  its  value;  if  it  served 
only  to  reflect  the  conclusion  deduced  from  irregu- 
lar and  incompetent  testimony.  And  that  Grand 
Jury  which  will  carelessly  make  its  presentment 
f  a  ^case  being  proper  for  tri.\l,  unless  the  evi- 
dence legally  offered,  shall  so  establish  the  con- 
clusion, is  as  untrue  to  its  duly,  as  if,  with  suffi- 
cient evidence  to  justify  a  further  examinafton,  it 
sball  institute  a  different  rule  for  its  conduct;  and 
become  a  screen  for  the  guilty,  instead  of  asserting 
its  high  position,  as  the  embodied  representative 
of  public  justice. 


ARGUMENT  OF  MK.  WM.  YVHALEY. 


Mr.  Will.  "Whaley  opened  the  argurnt- nt  lo  the  mny  difler  (rom  me  in  my  opinion;  but  I  have  been 
Court  by  sa;,  ing  ihu  i'.  wns  with  (eeiiiigs  o(  pro  forced  to  thHt  conclusion  and  am  coiiipelle<l  by 
lounil  respect  ilial  he  apiiroached  ihe  tiisfUssion  oi  'hcsie  proceedings  to  pronounce  ill  s  procedure 
this  que-tion,  respect  i'  r  ihe  Leg  !>laiive  As-embly  under  iliis  i>eqiie-iri.tion  Act  an  inqiii'tion  ol  the 
from  wliK-li  the  l,iw  has  emanated,  re-i)e<f.  for  the  niost  S'riiigeni  cliaracter  and  of  the  most  lawless 
Irihunal  inwhicliii  is  to  be  adiiiinistered  -  ai  the  inirposi^,  and  i  trust  to  be  alile  to  show  to  ihe  Court 
same  t  me  that  he  approached  it  with  feelings  of  ihat  it  is  »o  eonlrary  lo  common  rigi.t  as  e>tal)lish- 
no  coinmoa  emotion  so  (ar  as  lie  himself  was  can-  <  d  by  coiinnon  law,  ihat  no  human  power  ha-  t.'io 
ceriii  d.  r  -ht  t>  (iitbrce  its  provisions  upon  me  or  any  oilier 

*     He  stoo'l  bef)re  the  Court    as  one  who  hud  been  cliren  oitfoiith  Carolina. 

served  with  H  process  which  he  believed  belbrr  Are  ^he  provisioris  ol  ihis  Act  inqui^iiorial  ? 
God  to  lie  wrong,  according:  to  the  du  t  ite.s  of  hi>  S^ciiim  two  and  three  of  the  Act  are  as  lolliws: 
own  coii»cience  and  according  to  the  laws  of  the  -'Sec.  '2.  And  be  tt  fitrtlirreinici&d,  Thnt  it  is,  and 
land.  When  he  said  l.iws  of  ihe  land,  he  mean'  shall  be  liie  duty  ofeachanl  ev-ry  ctizeii  o'  these 
laws  of  Ihe  I  ind  in  coiiir;id.siiaciion  to  this  Ac'  oi  Udiife'i-  r.ite  Slates  speedily  lo  give  inlormatioii  to 
the  Conijie-s  of  the  Confederiie  tftites.  mid  \vt  en  the  odicers  charged  with  ihe  exee.iiiion  ol'  ti  i-  law 
any  i  ne  i>  forci  d  lo  assume  a  i  osnioii  of  ihut  kind  of  any  and  every  lands,  teiieiii'  nis  and  heied  ta- 
amidst  I  he  r  lar  of  caUMon  and  ihe  cla-h  of  arms,  cnents  eo  ds  and  chatels,  nahs  and  credits  wt'iin 
V  Ik  n  our  citizens  are  now  upon  ihe  banks  oi  the  hi- Confederacy,  and  of"  every  rigiit  and  ini«rest 
Poo.i^ac.  leady  to  seal  w  It'i  tlieir  blood  the  re'oln-  I'lerein  held,  owned,  po»sesstd  or  enjoyed  by  or 
tton  which  we  have  in-uiguia  ed,  and  which,  f  om  lor  any  alien  en -iny  as  aforisaid. 
1804  to  the  present  moineni,  he  h>is  diligen  ly  liied  'Sec  3.  /jV.  it  furihcr  eiiacietf,  Th'ii  it  shall  be  ih-j 
to  ai-co  iipliffh  — with  al  lhe«e  ciicum-t  uce-  Inty  t>f  every  attorney,  agent,  former  par  mr,  trii>- 
uronnd  him.  Hud  in  the  p.)siiion  which  he  had  al-  tree  or  other  person  holdmgor  cniroling  anv  such 
■ways  occupied,  boih  p  iliiu-ally  and  as  a  iiieml><-r  lands,  tenements  or  liereditHinents,  go'ds  or  ih  a- 
ol  the  bar,  lie  trussed  the  words  ihsi  would  How  tcU,  ri^ht-^  or  credits,  or  any  iiitere-'t  therein,  ol  or 
iVom  his  lips  Would  he  received  as  coming  I'roni  a  fur  anv  suiii  alien  enemy,  speedily  to  inibrmiLe 
sincere  i-n  I  honest  desire  to  act  according  to  the  Receiver,  hereii, alter  provided  t>  be  «ppo  nt'd,  ol 
ber-t  ol  his  judgment  and  conviciious  of  right  aiiJ  the  same,  and  to  render  an  account  thereof,  and, 
duty.  '  so  far  as  is  practicable,    to    place  the   same  in  the 

Wiih  the<e  preliminary  remarks,  Mr.  Whaley  iiands  of  sueh  Heoeiver;  whereupon,  such  per>on 
pr.-'ceedeil  with  his  argument,  and  laid  down  the'iluill  be  fullv  acquitted  of  all  responsibility  for  pro- 
coiir-e  he  would  pursue.  perty  and  effect*  sO  reported  and  turned  over."  *  * 

Firsi  'J"he  oiscussion  of  the  nature  and  cliaraf  '  We  w^ill  here  perceive  that  it  is  made  the  duty 
ler  of  the  Act.  cf  every  citizen,  including  all  classes  that  stand  in 

Second  The  elTect  of  the  Act  aid  Wrii  upon  a  tiduciary  relation  lo  each  oiher — relntions  that 
ihose  callr;d  upon  to  give  inforuiaiion  to  the  Re-  have  been  respecied  and  held  sacred  by  precedent, 
ceiver.  :  iiy  the  cnnuno.i    law  of  the  i.uid,    and   by    all    the 

Third.  The  eflect  ol  the  Act    upon  tho-e    called   usages  of  civilized    society,    (rom.  I  mny  say,  tiiire 

upon  to    pay    over    and     surrender    all   the    debt*      inniemorial,  at'ainst   which   the    memory    of  man 

monies  and  goods  in    their    pos.session  to  the   Re    runneth  not,  but  I  can  wellsay  I'lom  the  time  ot  the 

I   ceiver.  Christian  era.  to  obey.  This  writ,  which  commands 

Fourth.  He  would  (rontend  that  the  Writ  of  Gar-  them  to  come   befire  ttiis    Gourmand,    under   the 
nishmeiit  is  contrary  lo  the  Writ  of  Sequestration    s.mctity  of  an  oath,  inform  the  Receiver  what  pro- 
Fifth.  Thai  the  whole    proceed'ng  is   contrary  to  perty,  of  all  and  every  kind  whatsoever,  they  may 
the  laws  ol'  the    iund    and    void  under   the  laws  ol  liavt  in  their    pos^ession  of  an  alien  enemy;  what 
naiions.  |i hey  may  owe  to  an    alien    enemy,    and   whaiever 

I  will  now  proceed  with  ihe  lirst  branch  of  thellheymay  know  ol  in  the  pos.-es<ion  of  others,  and 
subject — the  nature  and  character  of  the  deques  'what  debis  oliiers  may  owe  to  a'ien  enemies.  Can 
traiioii  Ad.  If  my  judgment  directs  int-  ri^jhily.  anything  be  more  inquisitorial  in  its  nature?  And 
it  is  an  Act  passed  in  the  spirit  of  reialiation  lo  the  lor  what  purpose  does  it  become  incumbent  upon 
Conliscaiion  Aci  of  the  United  Stales  Congress,  every  citizen  to  be  submitted  lo  such  quesiioning  ? 
whereby  our  citizens  are  to  be  iudemiiitied  and  That  the  Receiver  may  lake  into  his  i)Ossession 
protected  from  loss  arising  under  that  Act  iuiii  such  properly  as  the  citizens  may  return  lor  the 
•Irom  such  lawle-s  depredations  of  the  enemy  as  purposes  of  this  Act — from  which  it  is  clear  thai 
are  contrary  to  civilized  warfare.  The  preamble  'his  Act,  instead  of  l)eiug  an  indemnity  to  our 
to  tlie  Act  plainly  sets  for  h  that  such  is  its  charac-  citizens,  is  an  inquisition,  under  which,  1  fear, they 
ler,  and  we  will  now  see  how  its  provisional  nature  will  sufler  muiy  burden*,  both  as  to  the:r  meanti 
accords  with  Us  character.  The  Aci  is,  in  its  na-  and  their  consc  ences,  and  that  brings  us  to  iheBe- 
lure,  an  inqui^iion,  and  by  using  that  strong  word  cond  head  of  our  argument. 

1  niean  no  <lisrespeci  to  the  Congress  from  winch  The  etTeci  of  the  Act  and  the  Writ  upon  those 
It  "inanaied,  no  disrespect  lo  the  Court  in  which  i  wttft  are  called  upon  to  give  inlormation  to  the  Re- 
is  lo   be   adjudioaled,    no   disrespect    to  those  who  ceiver« — and   that   is   the    bearing   of  the    Act,  in 


10 


THE  SEQUESTRATIU:^  ACT. 


which  we  are  most'y  concerned.  For  to  obey  the'ciple  that  the  Tr\istee  can  legally  do  no  net  what- 
mar. dale  ol  the  Wni  in  ihi-  lespect,  we  are  <  alle>l  .-cever  th»t  will  denude  his  iriist;  neither  h's  (rHud, 
upon,  a>  Aiornie-,  to  v  o  iiie  ihe  confidtiiiiHl  lollv.  nor  ignorance,  can  lawfully  de-troy  his  trus^t, 
relations  of  Aiiorney  ai  d  Client — as  Trii>iei-s,  icaiui  ihat  he  is  arcountable  tor  ihe  raithiiil  discharue 
beiray  our  t^u^ts — as  Agents,  lo  ignoie  ihe  right-  of  his  duty.  Whf  n  I  stand  here  as  a  Trusiee.  Iiav- 
ofour  ,irincipils, — all  of  which,  in  g' od  tniih  and;  \i  g  had  the  confidence  of  ihe  dead,  wiih  the  confi- 
good  conscience,  vveie  contiiled  to  our  i  hiirge.  I  ilenceof  the  living — standing,  as  it  were,  a  link  be- 
am aware  it  wi  1  be  >aid  ihai  war  pins  an  t-iid  toall  tween  the  living  and  the  dead,  with  a  solemn  dec- 
such  rel  'tions;  but  siirh  is  not  ihe  ca-e.  war  only'  iaration  upon  my  part  thai  I  would  adniini>ter  that  ' 
susi'eiids  them — and  1  will  liereaficr  tive  mu  horii\ :  trii»t  according  to  the  deed  under  the  laws  cij 
Jor  wtiai  1  now  say.  So  then,  if  war  cannot  de-troyiihe  land — is  it  law,  thai  I  can  be  called  iipcn  by  ati 
the-e  relations,  I  c'aini  niy  IVgal  right  lo  make  uo'j^rx.,  tx  post  facto,  passed  a'ter  I  had  a.-snmed  that 
an>wer  lo  the  Writ,  as  an  Attorney,  I  ecau-e  it  obliuation  and  enit  red  into  thai  contract,  to  p- r- 
vio^a'es  the  contiden'ial  relation  betv»een  Atloinry  |t'orin  an  act  without  the  purview  of  its  legality?  It 
and  Client — a  privilege  whidi  law  ha>  graned  t'.'  is  error  to  suppose  that  the  Sequestration  Act 
comnionjnslice,  and  rendered  sacred  !>y  ihe  Aitor-  alTords  any  proiCLtiou  (or  .'•uch  violation  of  duiy. 
nay's  oaih.     When  I  took  my  commission  Iroin  iheiiHetribution  will  be  «uie  to  follow. 


Stale  of  South  Carolina,  to  practice  a-*  an  Attorney, | 
I  took  the  Aitoriiey's  oath — hs  a  Tru>tee,  becausej 
it  violates  my  duly  as  Trustee,  and  calls  upon  niej 
lodtnudemy  tiust,— and  as  Af.ent,  to  betray  myl 
principal  a>  debtor  to  evade  my  crediior. 


While  on  this  point  I  will  cite  ove  g'orious  case, 
and  it  is  directly  in  question.  T  alUule  to  the  con- 
duct of  tlie  Spanish  factors  to  their  French  corres- 
pondents. In  16S4,  when  France  and  Spain  were 
iit  war,  the   Spani-h   Government    passed  an    Act 


The  law  as  to  the  privil-ged  communications  i»JLsimiIar  to  this.  The  hi-^lory  of  that  war  bears  the 
found  in  Greenleal  Us  Evidence,  Vol.1,  p.  328  i  proud  record,  which  stands  as  a  jierietUHl  nionu- 
Sec  237:  i  ment  to  Castdian    honor   and  Spanish  fiuth— not  a 

"And  in  the^r.'t   place,  in  regard   to  ;^ro/j!.VA'«o?7a/ isingle  Spanish  factor  beirnyed   his    French  corrc> 


conimuvicatiotis,  the  reason  oi  public  policy,  which 
excludes  them,  applies  ^olely,  as  we  shall  present 
\\'  show,  to  tho>e   between    a    client    and  his  legal 


Ipoiideni;  and  we  should  here  remember  that  th 
lived  under  a  nionarchic.d  government,  and  wert 
surrounded  by  all  the  habiliments  of  arbiirary 
adviser;  and  the  rule  is  clear  and  well  settled,  that!!power.  Castilian  honor  whs  enough  to  preserve 
the  covfidentiul  counsellor,  soUcitor,  or  aitonify,  of, Spanish  faith.  Let  Carolina  honor  preserve  Caro 
the  party,  cannot  be  comiielled  to  disclo-e  pnpers  llina  faiih.  We  will  now  take  up  the  third  point, 
delivered,  or  communications  made  to  him,  or  let-!  Tne  effect  of  the  Act  upon  parties  who  are  callet 
ters  or  entries  made  by  him,  in  ihat  capacity.  'Tliisj  upon,  under  this  Act,  to  pay  over  monies  due  tu 
protection,'  said  Lord  Ch.  Brougham,  is  not  quali- I'others  surrenderi.g  goods  and  other  property  to 
tied  by  any  reference  to  proceedings  pending,  or  in  iiliH  Receivers.  What  is  the  eflect  upon  all  such 
contemplation.  If,  touching  mailers  that  ccme'parlies  ?  It  will  be  here  seen,  by  the  third  section 
within  the  ordinary  siope  of  piofe>sional  employ  |iot  the  Act  before  cited,  that  the  Conledtrate  Con- 
inent,  they  receive  a  communication  in  their  pro-j'gre^s  has  guaranteed  lo  every  party,  who  shall  pay 
fessional  capacitv,  either  from  a  client,  or  on  hisjover  any  money  or  deliver  pioperiy  to  ils  Receiv- 
account  and  for  his  benefit,  in  the  transaciion  of  his'  ers,  that  they  shall  be  forever  discharged  from  all 
business,  or,  which  amounts  to  the  same  thing,  it'  responsibility  or  accountahiliiy  on  icconnt  of  such 
ihev  commit  to  paper  in  the  course  of  their  empioy-jlmoney  or  jiroperty.  When  the  Confederate  Con- 
ment  on  his  behalf,  matters  whch  they  know  only'  gress  undertook  to  enact  that  ihe  parties  so  paying 
throughtheir  professional  relation  to  the  client,  they!  shall  be  forever  di>charged  from  every  legal  re- 
are  not  only  ju.-tirted  in  withholding  such  matters,  sponsibiliiy,  ihey  undertook  to  enact  that  which 
but  bound  to  withhold  them,  and  will  not  be  com-j  ihey  had  not  the  power  to  enact.  Such  an  Act  is 
pelled  to  disclose  the  information,  or  produce  ihel  in  violation  of  the  laws  of  nations.  Any  one  who 
papers,  in  any  Court  of  Law  or  Equity,  either  as!  has  observed  ihe  inroads  which  civilization  and 
party  or  as  witness.'  j  commerce  have  made  in  ihe   rigorous    precepts    of 

'■'■'■The  foundation  of  this  rule,'  he  adds,  'is  not  onjinational  law  on  this  subject,  will  at  once  see  that 
account  of  any  particular  importance  which  the||ihe  question  is  now  settled,  and  that  the  laws  of 
law  attributes  to  the  business  of  legal  professors,!  naiions  do  not  recognize  the  principle  and  will  not 
or  any  particular  disposiiion  to  alTord  them  proiec  ':allow  the  right  to  confiseale  debts.  So  in  the  very 
tion.  But  it  is  out  ot  regard  to  the  interests  of  ju.s-  beginning  of  ihe  proceedings,  the  parties  accounting 
tice,  which  cannot  be  upholden,  and  to  the  adminis  .  with  the  Receivers  do  not  obtain  that  freedom  from 
tration  of  justice,  which  cannot  go  on,  without  the'  that  re>pon>ibiliiy  w^hich,  as  debtor  paying  their 
aid  of  men  skilled  in  jurisprudence,  in  the  praciice;  money,  they  are  entitled  to  have.  Af'ier  illustrating 
of  the  Courts,  and  in  those  nnilers  affecting  rights![by  an  example  I  will  give  authority  'or  my  position 
and  obligations,  which  form  the  subject  of  all  judi-j:A  party  purcha-es  ten  lholl^and  dollars  woith  of 
cial  proceedings.'  It  such  commumcaiions  were]  goods  in  New  York.  The  Upual  mode  of  business 
not  protected,  no  man,  as  the  same  learned  Judge  is  to  make  his  noies  payable  lo  his  own  order  and 
remarked  in  anotrer  case,  would  dare  to  consult  deliver  ihein  to  the  merchant  from  whom  he  has 
a  proTessional  adviser,  with  a  view  lo  his  defence, jlpurchased.  That  paper  is  usually  sold  upon  the 
or  to  the  enforcement  of  his  rights;  and  no  man  strcfts.  An  English.  French  or  Southern  house 
could  safely  come  into  a  Court,  either  to  obtain  may  become  the  purchaser,  and  the  owner  doe^ 
redress,  or  to  defend  himself."  !not  Inow  anything  more  about  it  until    it    matures. 

That  is  the  common  law — that  is  the  law  in  How  can  such  a  one  return  that  he  owes  that 
South  Carolina,  and  the  law  upon  which  I  nowj  money  to  an  alien  enemy  ?  He  does  not  know  such 
claim  to  stand.  The  law  as  to  Trustees  and  all  to  be  the  case  ;  all  he  knows  is  that  he  originally^ 
kindred  relations,  is  as  well  defined  — and  if  there!  contracted  the  debt  with  an  alien, 
is  one  principle  more  than  another  over  which  the  Such  is  one  of  the  many  embarrassments  which 
Court  of  Equity  has  thrown  its  broad  aegis,  andj|musiensue,butihereareotherandgraver  cbjec'iona 
covered  it  over  with    its  protection,  it  i.«  the  prinliThemerchant  owe.s  hisdebi  of  $10,000.     Admit  he  i|( 


ARGUMENT  OF   MK.  WM.  WHALEY. 


11 


ready  to  pay  it  over  to  the  Receiver.  Upon  paying 
his  money  lie  is  en'illfd  to  have  his  paper  deli  vereil 
up  to  him  by  the  party  receiviiijr  his  money,  or  to 
have  some  efTeciual  guarantee  thai  he  will  be  for- 
ever protected  from  ail  accountability.  Now,  the 
Receiver  cannot  deliver  him  hi*s  paper,  and  the 
Government  has  not  the  power,  as  one  of  ilie  family 
of  nations,  to  issue  such  pro:ection  from  liabiliiy 
as  would  be  acknowledged  all  over  the  world;  and 
that  and  nothing  short  of  that,  is  what  the  partu's 
paying  are,  in  good  faith,  entitled  to  receive.  It  is 
true  he  may  be-comea  (lovernment  claimant  for  his 
money.  Such  a  positiou,  ho^-ever,  should  always 
be  one  of  choice,  and  not  compulsion.  These  par- 
ties, then,  cannot  be  relieved  from  their  respon>i- 
biliiy.  The  Confederate  Stales  have  not  the  power 
to  grant  such  reiiel.  The  law  of  unions  will  not 
recognize  such  a  principle  nor  sustain  such  an  act 
and  everywhere  out  of  o<ir  Confederacy  he  would 
be  liable  agiiin  For  au  h'lrity,  I  refer  to  the  ca>c 
of  Wolfl  vs.  Oxh>lni,  6  Miule  &  Selwyn,  p.  92 
This  case  grew  out  of  the  S^qnesiraiion  Act  passed 
by  Denmark  In  the  war  ot  1^07  between  Ucnmurk 
and  Eng'and,  the  Danish  G-Jverninf-ni  undertook  ti> 
seque-ter  ihe  debts  due  to  !r.n'i|ish  subjeds  The 
case  above  cUed  wms  tried  in  the  King's  l5enoh,  and 
it  was  held  by  Lord  Elltnl)orouBh  thai  the  Act  wa> 
vo  d  under  the  law  o(  nation*.  The  authority  of 
tliis  cise  cannot  be  que^t  oned,  and  we  may  say 
thai  such  i»  now  the  cstab  i>hed  law  of  nation* 
upon  ihix  question.  It  i-  noi  likely  that  civ'iliz«t  on 
will  recede.  It  would  not  surprise  me.  il  th  'se  who 
sluMiLl  live  lo  see  the  en;l  of  this  war,  when  the 
whirld«ind  of  piission  his  passed  away  and  thinas 
hfive  settled  down  in  peaceful  quiet,  should  ^eethf 
plea  of  the  Si  quesiration  Act  lo  a  hona  fui*.  deb 
due  an  alien  enemy,  held  lo  be  a  bad  plea  in  South 
Ca.iil'na 

But  there  is  another  point — the  very  stringent 
terms  of  the  A  t,  wliica  I  will  endeavono  illnst  Mf 
A  return  is  m.ide  thai  a  citizen  owes  $10,000  to 
an  .iheii  enemy,  that  too.  for  goi-ds  which  he  ha>sold 
up  n  lime;  he  has  noic*  of  his  customers,  but  no 
money.  The  Receiver  calls  upo  i  him  lo  pay  ov  •; 
he  cnnot  do  >o,  and  cannot  give  sectni  y  ;  he  is 
no  ilied  'o  i-ay  up  on  a  ten  day  rule,  and  if  he  d  e 
not  comply.  Iiis<-ase  i-*  put  upon  ihe  docke.  At  ih- 
ni  xt  linn  of  the  Court  jii'lgment  is  o'lt.iin  d  and 
exeeui  ioii  issue  I,  and  heisso'd  out  by  the  Mar-hal 
Again,  It' he  i>  able  lo  give  securiiy  at  any  lime 
that  exigen'.-ie>  of  the  country  require  i',  lie  m  ly 
he  subjected  to  similar  process.  The  whole  Ac  ; 
pre-ents  but  one  lenient  feature,  and  that  is,  where 
Stites  have  pa<sed  Stay-Laws  in  the  collection  ol 
these  debts,  such  Stay-L\ws  are  to  be  respected 
Such  see.Tis  to  me  to  be  the  elTect  ol  ihi^  Act  upon 
thoie  who  return  to  the  Receiver  and  p  :y  over 
money  and  deliver  property  of  alien  enemies  into, 
his  hands. 

I  now  coiue  to  mv  fourth  point  which  is,  that  this 
writ  is  contrary  to    the  Act  ol  Sequestration. 

The  fourth  and  eighth  Sections  are:  \ 

'•Sec.  4  It  shall  be  the  duty  of  the  several  Judjes 
of  this  Confeileracy  to  give  this  Act  specially  in 
charge  to  the  Grand  Jurors  of  these  Confederate 
State*,  and  it  sh»ll  be  their  duty  at  each  silling 
well  and  truly  to  inquire  and  report  all  lands,  tcnc-; 
ments  and  hereditaments,  goods  and  chattels,  riahtsj 
and  credits,  and  every  interest  therein,  within  the, 
jurisdiciion  of  said  Grand  .Jury,  held  by  or  tor  any 
alien  enemy,  and  it  shall  be  the  duty  of  the  severalf 
Receivers,  appo  nted  under  this  Act,  to  take  a  copyj 
of  every  such  leporl,  rnd  to  proceed  in  obiaininij 
the  possession  and  control  of  all  such  properly  and' 


[effects  reported,  and  to  institute  proceedings  for 
the  f^equesiration  thereof  in  the  manner  hereia- 
af  er  provided.'' 

"Sec.  S.  Be  it  further  enacted.  Thai  the  Clerk  of 
the  Court  shall,  at  ihe  request  of  the  Receiver, 
Irom  liiueio  time,  i>sue  wriis  of  gariii?hments,  di- 
rected to  one  or  more  persons,  commanding  them 
to  appear  at  the  then  sitting,  or  at  any  luiiire,  term 
ol'  Uie  Court,  and  lo  answer  under  oath  what  pro- 
perly or  eflects  of  any  alien  enemy  he  had  at  the 
service  ol  the  process,  or  since  has  had  under  his 
possession  or  control  belonging  to  or  held  fur  an 
alien  eiiemy,  or  in  what  sum,  it  any,  he  is  or  was 
at  the  lime  of  service  of  the  garni>hment,  or  since 
has  been  indebted  to  any  alien  enemy,  and  the 
(yourt  sh  ill  have  power  to  condemn  the  property  or 
eil'ects,  or  debts,  according  to  the  answer,  and  to 
iiKike  such  rules  and  orders  for  the  bringing  in  of 
iliird  persons  claiming  or  di-closed  by  the  answer 
to  have  an  interest  in  the  litigation  as  to  it  shall 
Iseem  I'roper."       *        *        #        *       *       «       * 

If  I  undersand  this  Act,  bo  h  in  letter  and  spirit. 
It  seems  to  me  that  this  Writ  is  in  variance — vari- 
ince  in  substance  It'  I  am  right,  the  Act  contetn- 
|ilatc-  that  the  Judge  -hould  submit  the  Ait  to  the 
lirand  Jnrv,  for  ihiir  con^id<  r  ition.  The  Grand 
Jury  should  repoit  upon  the  Act,  up>n  which  report 
peiiiions  .-hoiil  I  be  tiled,  and  the  piity  then  called 
into  Court.  This  Writ  is  not  i-sued  upon  any  pro- 
leeediiigs  had  bef)re  a  Grs  nd  Jury,  but  i-sm-s  upon 
jlh,'  motion  of  the  Receiver,  in  accordance  with  the 
i>>th  S'ction  of  this  Act,  a*  it  i*  said,  and  is  in 
{violation  o'  the  Acl.  The  Writ  and  qiie-t'Oti 
under  the  Slh  sec-tion  dilfer  entirely  from  "h  ise 
L-oiitemp'alf  (I  under  the  4th  section,  aid  ihi-  Writ  is 
such  an  amal.;amaiion  of  both  as  lofireveni  the  true 
jintent  Hiirl  meaning  oi  ihe  law.  When  serv^d  with 
^this  prore-s.  1  at  (irst  whs  under  the  im|iressiou 
thai  the  Acl  had  b  en  submiued  to  a  Gniiid  Jury, 
>  ho  ;  ad  rep  irted  the  property  of  alien  .  nemies  in 
ny  hands,  t'lat  a  petition  had  b- en  fil.  d  setliiijf 
I'orth  a  d-scnp'i  -n  of  fie  prip-uv,  tthar  i  g  thit  it 
:vva»ihe  proprriyol  ulien  enemie  ,  »nd  iiia'  I  was 
•omnia'  de  i  by  this  Writ  to  atMcar  ^mn  jmis  .«  er  the 
peiiioii  a-  answers  are  made  to  Bills  in  Equoy 
iiiii  exaiiiina  i  ui  pr  ived  thai  -  opposition  mbe  eri-i  r 
When  the  Writ  und  ni-nog  torie~  end  r-'  d  ih  re- 
lon  was  rxamintd  i  wa*  t  und  not  t  i  i  e  in  conlbr  i 
y  wi'h  the  Act,  Hu  I  upo  i  »  U'lnoy  i'  proved  to  be 
I  hat  the  Act  h^d  not  as  yet  b^-en  sui'intiteil  to  the 
Grand  Jury;  ih.U  no  report  had  been  made  th»  reon 
jthat  no  (len'tion  had  been  (iltd.  Th  n  ihis'Wra  was 
not  a  subpoena  lo  answer  a  proceeding  pending, 
but  a  gentral  'Writ  to  answer  geneia'ly.  Such  a 
proceeding  was  in  violation  of  every  principle 
sjover.iing  legal  procedures,  and  without  autho.iiy 
of  law. 

The  process  authorized  l)y  the  Act  to  issue  upon 
ithe  motion  of  the  Receiver,  is  one  that  requires 
jyou  to  answer  from  the  lime  of  its  service.  The 
one  which  we  have  been  actually  served  with  re- 
quires you  lo  answer  from  ihe  2lst  of  May,  1S6L — 
Any  one  can  see  how  very  different  these  two  pro- 
cedures are,  and  I  ask  the  judgment  of  the  Court 
upon  the  point. 

This  brings  me  to  my  last  point  made  under  the 
arrangement  for  this  argument,  viz  :  That  the 
whole  proceeding  is  contrary  to  ihe  common  law  of 
the  land,  and  void  under  Ihe  law  of  natiims. 

I  regret  my  inability  to  do  justice  to  this  impor- 
tant subject.  In  saying  that  this  Act  is  contrary  to 
common  right,  it  may  be  necessary  that  I  .>.hould 
again  review  some  of  its  prominent  provisions. — 
That   even  if  the  Confederacy,  ttriotisstmi  jtiriii. 


12 


THE  SEQUESTRA! [OX  ACT. 


has  the  power  to  pass  such  a  law;  that  in  its  of  Christinnilv  and  civilization,  and  no  example 
practical  applicalion;  we  ^hnuld  look  well  to  every  is  more  proiDinent  than  ihe  progress  ol"  this  very 
feature,  especially  in  the  Courts  which  stand  as  law.  In  early  times  ihe  Cii|itor  had  ihe  right  la 
watchmen  to  the  outer  portals  ofthe  templeot'our 'lake  the  life  ol  his  enemy  laUen  in  war;  a  more 
liberties.  The  iudiciary  stand  between  the  legisla-  advanced  stage  gave  him  the  right  to  his  services, 
ture  and  the  people,  with  the  Constitution  as  the  The  law  subsequently  liecame  modified  as  to  proper- 
chart  for  both,  and  we  can  he  only  sure  of  justice' ty,  and  by  a  gradual  course  it  has  flowed  down  the 
when  its  portals  are  llung  widely  open  to  all  who' current  with  civilization,  until  Lord  Ellenborouah 
may  seek  its  light.  No  people  are  free  but  those  had  the  honor  to  pronounce  the  judgment  in  WoltT 
who  can  at  ell  limes  and  upon  all  occasions  havei;«.<r.  Oxholm,  and  establishfd  the  principle  that 
access  to  the  halls  ofjustice,  and  I  respectfully  in-l'although  a  State,  of  its  sovere'gniy,  may  pass  a 
vite  the  Court  under  the  law  to  pronounce  itsjjSequcstration  Lsiw.  that  the  nations  of  the  world 
judamt-nt  in  tlieir  behal!'.  I  say  if  there  is  powerto  i  will  net  recognize  its  validity,  and  that  it  tihall  be 
pass  this  law,  which  I  deny,  its  provisions  will  need  confined  to  their  own  limited  locality. 

amendment,  or  all  of  our  past    prosperitv   will   be|      ^t        i   ,        i      i      .  .u     i  /.u     tt   •.    i    q.   . 

I       ,  I-        .    I  '  ft'}  Now  let  us  look  at    he   aw  of  the  United    States 

entirely  obliterated.  c       .•  .  i  i      u    i  ■     •■ 

rr  .  .u       A    •  1-.       11  111.         ,,!  coiinsi-atine  projiHrtv,   and    to   which  thit  is  in  re- 

To  carry  out  this   Act  literallv   would  be  to  pull       ,•     ■  rri  ,    i      '       .  <•       .11. 

J  .1  I       <•  ■.  J    •    .      1        I  laliation.      1  nut  does   not  conhscate  debts,    money 

down  the  leniple  of  our   prosiieri  y    and   introduce        11,1  111  .  .11 

T    '■..■.'       c  r.  1     ,•  or  bank  slock,    and   like   property,    not  evenlind, 

into  our  midsi  in  this  time   of  wa  ,  of  taxes,  and  ol  ;,     .         ,  ,         .  .     u       1    V  i- 

'  '  1  but    only    such  as  is  contraband  of  war  or  used  in 


prostration  of  all  business,  wholesale  ruin.  Thi 
A<-t  makes  the  Governinent  the  general  coilec'oroi 
all  debts  <ltie  by  its  cit'zens  to  alien  enemies.  Why. I 
may  it  please  your  Honor,  this  is  worse  than  war,| 
and  far  more  ruinous  in  its  conseijnences.  I  have 
previously    illustrated    by    exumple    the    practical 


aiding  the  war.  I  (ear  when  we  reaai-d  it  in 
this  light  that  our  Act  will  bemorelhan  retaliation, 
and  un!e-^s  in  terorem,  will  exceed  the  bounds  of 
wise  legislation. 

I  have  passed  over  this  subject  as  briefly  as  its 
workiiiff  of  thi.;  Act,  and  as  authorities  in  point,  l;Imiigiiitude  would  aliow,  and  I  trust  I  have  said 
woull  refer  again  to  the  case  of  Wolff  i;«.  Oxholm, Ksoiuething  thai  may  cause  the  sfales  oi  jii-tice  to 
in  6  M.  &  .S.,  92,  and  to  Kent's  Commentaries,  page,, be  equally  balanced;  that  this  Act  may  be  taken 
78,  i  n  reference  to  the  Silesian  Loan,  also  theijand  properly  con-trued  in  re'ation  to  the  laws  of 
Treaty  of  the  United  S'a'es  wiih  Great  Britain.  Php  land  and  the  laws  governing  common  right. 
Colonibi),  Chili  and  Venezuela;  all  of  which  go  to'llf  uncon-iitutional  that  it  may  be  set  aside— if  in 
show  the  point  and  to  e«tabli-h  the  principle  thatliviolatioii  ol  the  law  of  nations  and  of  common 
one  nation  cannot  confiscate  the  debts  due  by  itsirigh*,  that  it  may  be  construed  to  conform  with 
citizens  to  the    citizens  ot  a    country  at  war  with^jl^o  h  or  set  asde — it  in  violation  of  precedent,  that 


them,  so  as  to  be  generally  recognized  as  a  valid 
and  liinding  act  among  all  the  nation-*  of  the  earth. 
The  treaties  upon  this  subject,  as  found  in  Kent, 
show  bow  the  vigorous  laws  of  moie  barbarous 
times  have  been  softened  down  with  the  progress"lhe  citizen  may  be  fully  maintained 


it  may  be  so  declared;  that  the  judgment  of  the 
Coiiit  may  n  lieve  the  citizen  from  the  distress 
which  must  inevitably  (b'low  an  arbitrary  enforce- 


ment ol  this  Writ,  and  above  all,  that  the  liberty  of   I 


ARGUMENT  OF  M.  NELSON   MITCHELL 


It  may  naturally  be  a  snbject  not  only  of  surprise' powers,  is  the  power  to  do  everything  necessary 
but  censure,  that  one  whose  daily  duty  it  is  to  appeal  land  proper  to  cat  ry  them  inio  efl-  et. 
toihe  law  in  behalf  of  oihers,  >hoiild  he  ("oiind  in  an  Now  is  the  power  to  eonli>cile  and  sequestrate 
attitude  of  apparent  re>-i^iance  to  its  coinman<U  not  cnly  all  (iroperiy.  hut  debts  and  other  iiitangi- 
But,ilin  looking  heynd  the  appecirance,  it  hedis-  ble  miert-s'S.  emhriu-Hd  within  i  he  powt-r  to  make 
covered  that  what  assuiued  the  authority  ol  law  had'jwar?     If  it  is  contended   that  tlie  war  power,  so  lo 


ii«urped  Iha:  soli^nin  warrant,  that  ilioiigli  th. 
crowr  and  sceptre  might  be  exliilxied  the  royal 
authority  was    wanting,  then  it  would    not  only    he 


de-ignate  ii,  emiiracfs  no'  only  what  is  neee>ssary 
laiul  what  is  usual,  but  all  that  miiy  by  any  exti  nd- 
icd  chiin  of  cau-e  and  eflVct  aid  in  the   conduct  of 


this.  But  to  reach  this  it  niusi  ahsorli  all  i  o«sible 
(lolitical  power,  ad  superst  de  e\  erything- lilve  lim- 
•tatmn  or  distribution  of  powei  beiween  ihe  States 
^nd  the  Coiilt-df  rale  authority.  This  would  carry 
with  it  pow  er  over  the  i>uMic  pre>s,  over  the  State 
Leaisla'ures.  and  eveiy  f>irm  ot  corporate  and  local 

word  of  such 


allowed  as  pardonable,  but  acceiited  a"  the  part  olijihe  war,  either  p'siti»ely  by  diiecily  iiicreasing 
duty  that  the  attemlanls  in  i  he  Temple  ol  Ju^tie-t-  he  power  ol  the  helligeieni,  or  negatively  bv  re- 
should  be  the  rtr.'-t  to  give  warning  ol'  the  danger   jiuovina- obstacles,  then,  ol   cour^e.  it  mii-t  include 

It  is  in  this  aspect  and  with  this  meaning  that  the  ■'"■'       "■■*  '"  -"•-•'•  •'>■"  ■•    "'■■-•  "i^-^-i-  «ii  .  -  .  ;i.i-- 
prei-ent  proceedings  present  themselves  to    lue.     1 
see  here,  it  is  true,  ihe    outward  sian-*   of  ihe  lnw, 
the  seal  and  signature  "vliich  are  intended  to  furnish 
proof   of    the    auiheni  icity  of    the    mandate,    bin. 

according  to  my  coiviclions,  thev  mean  nothing.,  uv.;^.!-. a  u.c-.  onu  i::v^.  ^  >,.■  m  v.j  v.i^i)<ui  mc  tiiiii  luvjii 
They  are  but  perverted  symbols  which  have  been!  auihoi  iiy.  And,  indeed,  war  is  a  word  of  sucl 
wrested  from  iheir  true  purpose,  and  serve  buijniiahiy  import,  it  implies  a  condtiion  of  such  ler- 
to  ini.'«lead.  The  command  which  ihey  wonldijrific  aspect,  that  it  is  natural  to  shrink  from  any 
guaraniy  as    the  voice  of  the  law    is  wiihoul  siieh     "'"  ■     '  '  ■      •       ■"  '      ■         < 

sanction,  and  is,  therefore,  a  lifeless  thins,  and  lor 
one  who  so  regards  it,  it  is,  in  some  measure,  a 
protessional  obligation  to  expose  its  noihingne.-'s 
It  will  be  contended,  then,  that  the  Act  ot'  the 
Confederate  Congress  under  which  this  proceeding 
is  instituted  is  vo  d. 

It  is  insisted  that  the  power  of  confiscation  or 
sequestration,  at  least  to  the  extent  claimed  in  tlie 
present  Act,  is  not  confided  to  Congress  by  the 
Provisional  Constitution;  and  that  even  if  it  be  so 
confided,  the  mode  in  which  it  is  now  nropo^ed  to 
exerci>e  that  power  is  not  within  the  scope  of 
the  constitutional    authority  of    Congress.     It    is 


ffort  to  limit  the  extent  of  power  which  it  draws 
jRiter  it.  and  to  conclude  that  this  power  is  to  be 
!niea.»ured  only  by  its  requisitions.  But  was  this  the 
[view  taken  by  \hf  Coii;res  at  MontiLOmery,  and 
uo  we  find  it  embodied  in  the  Coll^tilulion.  It 
would  seem  that  the  instrument  it>eir  answers  us 
in  the  neaative;  an  answer  not  contradicted  but 
confirmed  l>y  every  other  consideration  which  may 
be  regarded  as  having  any  weight  or  bearing  on 
the  enquiry. 

In  undertaking  to  criticise  and  expound  any 
grant  of  political  power,  we  assume  a  most  impor- 
tant and  ditficult  task.     Anything  like  minute  ver- 

....    ...w..^...j   «.     (>,■--- 1  [bal  criucism  IS  entirely  out  of  place.     Language  is 

however,  denied  that    the  process  which  it  is  now|  after  all  such  a   relotivi--    thing  that   we   cannot  be 
designed  to  enforce  is  in  pursuance  of  the  Act,  and;]ioo  careful  in    seeing   under   what  conditions  it  is 

nilirii^i^.l  ilitit     it   14   f*l*'5irlv    in   violnfinn    cti'    cmiiiTion  {pmnlnve<l     whf^n    u'^    u^nnlil   l^nm  ita  cir.Tii..l    >v^Aor.— 


nllinned  that  it  is  clearly  in  violation  of  common 
right. 

On  one  or  all  of  these  grounds,  it  is,  therefore, 
asserted  that  this  mandate  is  null. 

Fir.-t.  As  to  the  power  of  sequestration  or  confis- 
cation. 

The  Act  proposes  to  embrace  within  its  opera- 
tion not  only  all  tangilile  properly,  real  and  perjoiial, 
generally    recognized   as  such    belonsing   to   alien 


employed  when  we  would  learn  its  aciunl  mean- 
ing; hence  the  instrument  which  you  would  con- 
strue is  always,  as  ("ar  as  it  goes,  its  own  best  com- 
mentator. 

Does  the  Constitution  itself  inform  us  as  to 
whether  the  war  power  is  intended  to  be  granted 
in  its  vast  undefined  extent.  Most  unmistakably 
and  clearly  that  it  is  not.  It  it  had  simply  invested 
Congress  with   the    power  "to  declare  war,"  with- 


CllCiaiiy       I  cv-.-*^  il.^tw      <»-,     5>inii       ij^iwitniti^      ty-i      .i.i\.ii,    v^vju^icoT.    v>iiu      lijt       jp<'»ci  l'.»    uiruiilic    Will,        wjin- 

nemies,    but   all    rights,  credits   and  interests   of  out  more,  then  it  might  have  been  reasonably  con- 
every  sort.  jllended    that    this    with    the    general    addition    of 

If  the  only  question  were,  whether  this  be  wiihinjiauthority  to  make  all  laws  "necessary  and  proper" 
the  power  of  the  Sovereign,  the  discussion  wouldi  to  carry  into  eflei't  the  general  powers,  wou!d  in- 
be  very  much  abridged — but  it  is  a  much  inorej  elude  whatever  might  be  reaarded  as  conducive  to 
complicated  and  more  ditficult  one.  The  Congressj  the  success  of  the  war.  But  this  is  just  what  is 
which  passed  this  Act  not  only  does  not  claim,  butjjnot  done.     Investing    Con 


pa< ....    J —   

would  reject  anything  like  the  attribution  <if  sove 
reign  power.  In  every  exercise  of  auihority.  title 
must  1)6  traced  to  some  clause  in  this  charter  ol 
power,  or  it  is  invalid. 

It  is  apprehended  that  the  only  provisions  which 


,      ^         ngress  with   power  to  de- 

clare war,  the  instrument  itself  declares  that  this 
!is  a  limited  grant  by  specifically  investing  Con- 
gress with  otherenumerated  powers,  which,  if  the 
fir-t  power  were  ol  the  general  character  contend- 
1   for    must  have  here    been    included   within  it. 


can  be  appealed  to  in  the  present  instance    is  the)  For  after  the  power  to  declare  war  is  as  specifically 
^wer  to  declare  war,  and  to  make  rules  and  regu.jjset  out,  comes  that  to  grant  letters  ot  marque  and  re- 
lations respecting  captures,  &c.  j  prised — to   make  rules  concerning  captures  on  land 
As  ancillary   to    all   ihe»«  specially  eauraeratedl|and  wator — to  raise  and    support  armies — to  pro. 


14 


THE  SEQUESTRATION  ACT. 


vide  and  maintain  a  navy — to  make  all  rules  for' 
the  government  and  regulation  of  the  land  and 
naval  I'lrces  Can  it  be  asseried  thai  the  power  lo 
confiseaie  the  property,  acid  estieciuily  the  delits  of 
the  enemy,  is  more  neces-ary  or  rnore  closely  coii- 
nectt-d  witli  the  war  power  than  all  iho>e  other 
powers  specific»lly  enumerated?  No  war  is  con 
ducted  without  the  exen-ise  ot'soine  of  iliese  oih^r 
powers;  few  without  all  or  most  of  them.  But  as  to 
the  power  to  confiscate' debis  it  has  not  been  re- 
sorted to  more  than  two  or  three  times  within  as 
many  centuries — since  the  occasion  on  which  the 
"tirin  fftiili"  of"  the  Spanish  nicrch  uits  defeased  an 
edbrt  of  the  kind.  To  say  ihen  ihat  it  was  neces- 
sary to  enumerate  the  otheis,  hut  not  this,  seems 
alm')st  a  palpible  inconsistency.  But  it  mny  he 
said  that  though  not  p  issihly  wiihin  the  w  r  power 
generally,  il  is  directly  within  the  specifii-  power 
'•to  make  rules  concerning  captures  on  land  and 
water."  And  it  is  contended  ihat  a  law  sequestra- 
ting or  coiili-caiing  that  which  is  and  always  h.\> 
been  Within  our  power,  and  th  refore  never  ha- 
been  the  subject  of  capture  at  all,  is  the  e.^ercise  of 
n  power  to  make  rules  concerning  'crtpiures  on 
land  und  on  WHier."  I-.  it  con«isient  wiih  any  de- 
cent regard  for  the  pr. >prieties  of  language  so  to 
iwi-t  it  iromiis  naiural  imp  iri?  j 

We  require  no  leaal  If-arinngto  inform  us  vvh'it  a 
"capture"'  is,  and  no  schol  i*tic  ingenu  ly  is  need-' 
ed  to  convince  us  thu  we  canno'  ''cajiuire"  that 
which  ha<  always  been  wiihin  our  po\vcr.  The 
general  aiithoriiy  to  which  I  have  advened  will 
not  endble  the  advocates  of  this  law  lo  coii»triie  it 
iiilo  ihe  Con-titiition;  i\  r  ih-tt  cann  it  be  said  to  be- 
n»'C>-ssary  and  proper  lb  the  conduct  of  war,  which 
is  never  reso.te  i  to  at  least  so  rate  y  as  not  to  im- 
pair   practii-ally  the  ibrce  of  the    general  assertion 

Such,  then,  is  the  conrliisioii  to  Vv^hich  the  C"n-| 
siitunon  its'  If  would  le^id  ns,  and  i-^  tins  contradic-i 
ted  or  confiriiie<)  by  |)re  iimi>t  on  and  ara Uiiieiiis' 
fruui  other  sources?  What  do  we  learn  from  pub- 
lici»is  and  writers  on  Int^ rnaltoiial  Law?  They  doj 
no!,  of  coiir:-e,  address  the  precise  qtit-stion  thai  we 
are  con-idtring,  because  it  can  only  ari-e  uniler^ 
our  own  peculiar  system,  where  the  different  aitri 
butes  of  national  so\  erf  ign  power  are  vested  in] 
dirtereiit  quaiters.  Their  views,  however,  havel 
application,  though  not  d  recily.  The  qiiesiioni 
with  them  is,  whether  the  confi-cation  of  debts  at! 
all.  be  Wrtrranted  by  the  law  of  n-)tioii.s,  not  wheth- 
er it  is  a  pan  of  ihe  war  power,  or  by  what  aii'hor-! 
iiy  It  should  be  exercised.  It  'S  not  too  much  to 
say  thai  it  has  been  questioned;  whether  this  i> 
warranted  by  interna  ioiial  Law;  and  even  whenj 
that  is  conceded,  it  is  condemned  as  inexpedient! 
and  not  as  consistent  with  the  improved  civilization 
of  modern  times.  In  the  Court  of  King's  Bench  in 
England,  in  which  that  precise  point  was  beforr! 
the  Court,  ihe  decision  was  against  the  power,  and 
the  unfortunate  debtor  was  mtde  to  pay  a  second 
time  a  dtbt  that  he  had  already  paid  under  such  a 
law  bv  the  Danish  Government.  (Oxholm  vs. 
Wolff>6  Maule  &  Selwyn,  9-2) 

In  no  case  before  our  own  tribunals,  State  or 
Federal,  can  it  be  said  that  ihe  precise  point  has 
been  adjudicated,  although  in  Brown  vs.  U.  S.,  8 
Cranoli,  and  perhaps  others,  some  of  our  most 
distinguished  Judges  have  expressed  themselves 
as  adhering  lo  the  opinion  that  the  confiscation  of 
debts  was  wiihin  the  sovereign  power  of  a  iiaiion 
As  Chancellor  Kent  says,  the  "Judicial  language  in 
this  country  is  decidedly  in  support  of  the  right." 
(1  Com  ,  64  )  But  though  conceded  as  apower,  its 
exercise  is  reprobated;  "it  may,  therefore,  well  be 


considered  as  a  naked  and  impolitic  right,  con- 
demned by  the  enlightened  conscience  and  judg- 
ment of  nodern  times  "     (1  Kent  Com.,  05  ) 

Thus,  though  steadily  dnf  ing  out  of  view,  we 
can  concede  that  it  is  still  wiihin  the  outskirts  of 
the  sovereign  power  of  nations.  But  this  is  quite 
enough  to  show  thai  it  most  clearly  is  not  regarded 
as  necessary  and  proper  to  the  power  of  declaring 
and  conducting  war. 

The  international  view  of  the  Grovernment  of  the 
United  States  confirms  this,  and  the  history  of  our 
own  S  ale  is  conclusive  as  to  how  the  matter  has 
been  regarded  and  treated  by  us. 

In  many  of  our  treaties  with  foreign  countries, 
it  is  stipulated  again-t  any  exercise  ol'such  piwer; 
in  ihat  with  Great  Bntiin  (HO-^  )  it  was  besides 
declared  "unlawful  and  iinpoliiic,"  that  debts  should 
be  impaired  by  national  differences. 

Il  IS  surely  unnecessary  to  insist  now  and  here 
that  the  Ariides  of  Confederation  and  our  present 
Provisional  Constitution  difler  only  in  the  extent  of 
power  grrinted  lo  the  central  auilioriiy  or  agency. 
In  nei'her  i^  ih^re  any  latent  soveieigniy  or  reser- 
voir of  n  tional  power,  out  of  which  lo  feed  any 
occasional  uses  or  exercise  o(  convenient  authority 
by  Congiess.  Upon  consult  ing  the  Articles  of  Cou- 
Irderation,  It  will  b"  seen  that  there  is  no  sub-tan- 
tiril  or  even  perceptible  difference,  a*  to  the  extent 
"f  the  aiiti'Oriy  ve>ted  in  the  central  L-gislaiure, 
in  this  pa  tirular,  Heiween  the  Article^  of  Cinfede- 
ratii'H  and  our  pi-e-eiit  Constitutixm.  (6.  Siatutes, 
p.  15:.)  And  vet  the  (act  is  befire  ns.  ihat  the 
!Coi>gres>i  oi  that  di-y  not  only  confined  itself  lo  the 
natural  im  ort  nf  tlie  words  of  the  grant,  in  <  nly 
jmaking  rule-  concerni  g  cap'ures,  which  were  cap- 
tures, bui  deeinina:  it  expedient  thai  a  fur  her 
power  should  b^-  exeri-iseil  on  enemy's  proper  y, 
held  itsf  II  o'>l  ged  lo  re-ort  to 'h^  St'tes,  recom- 
mending such  an  ext-r  ise  oi  Sovereign  y  bv  them 
(4  ."^trttii  es,  Slij  )  Oui'  own  State  u  as  ih<  n  luMy 
alive  to  I  he  construction  and  iiis  ribuii^n  oi  these 
powers,  for  in  ihe  Pieamble  of  tne  Act  pnssed  to 
Icarry  ou  the  reconimendaiion  of  fo 'gress  it  is 
recited  iIihI  'hr^  ('ong^e^s  of  the  Uni  ed  S  a  es 
lia"ins.  al'ter  due  and  innture  consi'ltr  ai  in,  aiithor- 
jizedihe  coniJeinna' ion  of  all  property  of  triiish 
isubjects  found  on  sea,  "and  rec>>inmen  led  lo  the 
several  States  in  whicn  such  su'ij>'ct>  had  property, 
;  o  confi-cae  the  same  for  the  public  use,  &c.,  it  i» 
enacted,"  &c.,  taking  care  thnt  il  should  appear 
!that-Coiigress  admi.ted  the  rights  of  the  States. 
|(4  Statutes,  516.) 

i  Our  Act  of  Confiscation  vtas  confined  to  property; 
jbiit  the  State  not  only  exercised  her  power  over 
this  pan  of  the  subject  matter  embraced  within 
it  he  present  Act,  by  confiscating  it,  bu{  asseited  her 
jurisdiction  mtost  emphatically  over  the  other  part, 
ihat  is,  debts  due  alien  enemies,  not  by  confiscating 
tliem.biH  the  reverse,  by  enacting  that  under  cer- 
tain conditions  alien  enemies  should  have  a  rij^ht 
jlo  sue  and  recover  in  her  Courts.  (4  Statutes,  642.) 
j  We  see,  therefore,  that  the  conclusion  which  we 
would  draw  Irom  the  natural  import  of  the  lan- 
guage employed  by  the  Con«titiMion,  namely,  that 
an  unlimited  power  of  confiscation  is  not  within 
jihe  power  to  declare  war,  or  the  power  to  make 
irules  concerning  captures,  not  contradicted  by 
writers  on  International  Law,  is  confirmed  by  the 
diplomatic  history  of  the  United  States,  and  de- 
manded by  the  legislative  action  of  our  own  Stale. 

In  accordance  with  all  this,  therefore,  the  Act  in 
question  must  be  regarded  as  an  excessonthe  part 
of  the  Congress  and  of  consequence  void. 

The  next  point  in  as    to  the    procass  which  has 


ARGUMENT  OF  MR.  NELSON  MITCHELL. 


15 


been  issued  under  ihis  Aft.  Is  this  extraordinary; 
mandate  which  we  art*  called  upon  to  obey  wiihin 
the  auihority  of  the  Act  ?  It  is  to  be  inferred  that 
it  hi»  b.  en  frame  i  by  lie  Aitorney  Geneial,  notifrj 
the  HUthoriiy  <-onferred  upon  him,  to  pre-ciibej 
uniform  rule-,  ifer.,  ami  no  doubi  the  eighth  section; 
will  be  referred  lO  hs  tlial  under  whirh  lliis  paper! 
is  is>ned.  Thai  section  directs  ihe  Clerk  upon  ihe' 
app  'Ciiion  of  any  Rrceiver,  to  issue  Wiils  of  Gnr-; 
nishment,  dirc'ted  to  one  or  more  persons,  com-' 
nianding  them  to  appear  an<l  an-wer,  umler  oatli. 
what  property  or  as>els  tliey  hud  oi  any  alien  cue  i 
my.  'T  in  whit  suni,  it  any,  'b.  y  nre  in^lehted.  ifc'J 
Wh  n  such  a  body  a*  the  Conaie-*  ol  iht  Coa- 
federaie  S  a  e«.  not  on'y  having  among  themselve- 
much  legal  intelliKen'  e  and  lenrning,  but  having 
the  aid,  when  necesary,  of  the  liesi  ptofe^iunnl 
experience,  niake>  use  of  legil  t<  rm-.  it  is  lairiy  I  i 
be  inferred  that  they  are  used  accoiding  to  thtii, 
usual  technical  acceptation  ;  l>  ast  of  ail  is  it! 
to  be  iinpl  eil  or  lightly  presumed,  th^tany  inin- 
strons  (tcp. inure  iroin  the  anal  ii.ie-  and  principlr>| 
of  the  law  is  desiifned.  Does  ii  not  n  iiu:re  a  >oiiie  | 
whai  dangerous  d.  gree  of  pro  e-son.d  intiepdiiyi 
to  c'aiin  thai  wcai  seem-  to  be  snncly  HUtii  r.iy' 
lor  an  oidina'y  wrii  of  at  achirir-iii .  a<iapted  to  the' 
nature  of  ih- Mibject,  under  i  he  u-'i.l  eotidilions, 
Will  au  hori^e  ihe  creation  of  a  novel  iiiand,ite  liuu 
the  one  befoie  us— a  nuindaie  not  in  accordance 
with  any  anah)iiy  ot  the  existing  law — one  fo'| 
whi  h  we  can  tind  no  likene-s  short  of  the  general, 
warran  s  stuiiped  as  connterieil  in  the  last  cenln- 
ry  ;  a  coniileie  pretridenl  lor  wiiich  is  only  to  In 
found  still  acenlnry  further  b.ick,  m  the  noloiioii> 
process  whicn  then,  after  long  execr,iiion,  wa>! 
ab  dished  ..nd  t.aiUided  upon  as  only  the  lilim^j 
instrument  oi  tyranny.  j 

Is  11  lemeriiy  then  to  say  that  this  process  is  noi| 
auihoriyed  by  the  Act,  and  is,  iherelore,  void.  | 

If,  however,  we  are  wiong  in  as>eriiiig  ihnt  ihi^l 
precept  is  not  a  legitimate  olT>hoot  Ir  >m  the  Act 
itself,  and  if  it  indeed  be,  that  it  is  anlhori^ed  li\ 
the  provi.-ions  in  question,  <till  we  in-i-t  that  it  i- 
withont  constitutional  auihoriiy,  that  it  cannot  be 
saved  by  the  Act,  but  will,  on  the  contrary,  demon 
slrate  itie  inlirmiiy  of  that. 

It  IS  due  to  candor  to  admit  in  this  connection, 
that  some  of  the  provisions  ot  the  Act  are  very 
vague  and  general  in  their  terms,  and  imply  very 
coniprehenMve  operation.  After  describing  in  llie 
ino.-t  general  terms  the  objects  to  be  included  in 
th.e  Act  in  the  fir>t  section,  ilie  >econd  reqnire.- 
every  body  to  become  an  informer,  and  the  third 
contains  a  severe  penal  enactment  against  a  large 
class  01  persons  sliotild  ihey  be  remiss  and  not  in 
form  speedily.  In  all  this  there  i^  certainly  very  much 
of  novelty,  and  hence  the  defenders  of  the  proceed 
ings  may  have  some  countenance  lor  contemling 
that  it  is  quiie  appropriate  to  have  it  earned  out  by 
a  still  more  novel  writ. 

It  is  to  be  observed  that  there  is  no  exception 
here  as  to  any  of  the  relations  of  liie,  or  as  to  ihe 
mode  in  which  the  knowledge  called  for  ha.s  been 
obtained  The  one  may  be  the  closest  and  teiidere>t 
which  can  exi.«l,  the  other  the  most  solemn  known 
to  liuman    intercourse — and   the  objeit  of  all    this 


delation  may  withal  be  the  most  helpless  and  forlorn 
that  can  address  themselves  to  human  compassion  : 
the  widow — the  lunatic — the  orphan — before  this 
Inv  there  is  no  dilVerence;  every  bosom  must  be 
emptied  of  i:s  knowledge  so  ihat  none  may  escape. 
What  ^oclety  which  we  would  venture  to  pre.-ent 
as  authority  has  ever  demanded  sacridces  likethi.-? 
It  will,  no  doubt,  be  said  that  all  the  delicate  con- 
siderations which  we  have  adverted  to,  are  made 
|to  eive  way  belbre  the  obligations  of  the  wit- 
jness  stand  or  in  cases  of  discovery  to  a  Bill  in 
E(|niiy. 

The  oblig.ition  to  do  a  cenaia  thing  under  cer- 
tain conditions  and  with  ceria'O  exceptions,  and 
the  oblig.ilioii  to  do  the  same  thing  discharged  of 
those  con  lition>  and  without  the  e.xceptions,  i^  jn  t 
tbedifi.  rence  beiween  ju>tice  and  de-p  ilimi.  To 
say  ihdt  culling  upon  a  witness,  or  a  deiendant  in 
lequiiy,  or  a  garnishee  in  ailachment,  to  tesiil'y  as 
10  a  certain  fdCl,  or  make  a  return  as  to  a  paiticu- 
lar  person,  is  the  same  as  auihm  iz'ng  a  Receiver 
to  sumiiions  the  coinmiini'y  by  -ouiid  of  trumpt  I  lo 
jinforin  seneiaily  hs  t  i  a  class  of  person-,  i-  to  say 
iWhat  no  society  has  ever  said  or  can  ever  enf  >rce, 
if  it  should  undertake  to  say.  Ihe  instincts  ot 
[modern  t'iv.l  zatiin  requiieiio  b  arning  Irnnthe 
|book-  for  in-triioion  as  to  the  d  ll'erfnce  between 
an  informer  and  a  w'iness.  Ingenuity  may  attempt 
ito  con  ound  the  two  but  the  sen-ibiliiies  ol  the 
lhuni:ui  bosom  will  a>sert  their  rights,  and  place 
Jtheone  on  the  ri^hi  and  the  other  on  tiie  lefi.  Shall 
we  be  tol  Ijhat  there  is  no  specirii-  provi-hin  in  the 
Cons  iiut ion  a^nin-t  all  il.i-,  and  that  common  right 
IS  too  vaK"e  aih'na  to  be  appealed  to  before  a  tiibu- 
mal  ofju-iice?  Where  is  there  any  provision  apainst 
jihf  boot  or  the  thnmbscrew  as  a  means  of  eliciting 
jinforma  ion  ?  Il  the  zeal  of  an  over  eager  bgij-la- 
tor  mav  go  bick  to  the  discarded  machinery  of  a 
Ibyegone  despotism,  and  rummage  up  this  wril 
ifrom  the  preiedents  of  St  ir  Chnmber  praclice  for 
jrardern  use.  why  not  also  other  parts  of  a  like  ma- 
chinery,— ibe  boot  and  the  ihiiinbscrew?  We  begin 
with  the  question,  a  term  of  oniinou*  import,  and 
[[what  next?  Now,  if  all  this  be  necessary  and  prop- 
er lor  carrying  out  the  law  of  C^ongress,  it  may 
be  equally  so  for  every  othi  r,  and  where  can  we 
say  thill  such  iremf-ndous  power  has  been  conti- 
ded  to  the  limited  legislative  agency  established 
under    our  Prf)visional    Consiitntion. 

Society  has  very  large  claims  upon  its  members, 
but  they  are  not  without  limit;  even  a  sovereign, 
jihongh  wiihout  bounds,  if  a  wi-e  one,  knows  this  ; 
any  claim  beyond  this  limit  is  worse  than  useless, 
lit  IS  misch'evoiis.  Eveiy  society  has  a  right  to  the 
llives  and  fortunes  of  its  members,  but  ought  not  to 
expect  certain  sacrifices  and  services  which  hu- 
man exficrience  teaches  us  cannoi  be  enlbrced. 
(t  may  terminate  the  former  relations  of  liie  It 
can  scarcelv  hope  to  extinguish  the  sentiments 
which  they  have  beiiOtten.  We  all  acknowledge 
'he  obligation  to  tell  the  truth  and  the  whole  truth 
on  the  witness  stand.  It  may  be  that  sone  have 
yet  to  learn  whe'her  they  can  become  informers. 
A.  General  may  order  hi-  mjn  on  a  lorlorn  hope, 
however  certain  the  destruction ;  (or  spies  he  must 
resort  to  voluntary  service. 


ARGUMENT  OF  MR.  MILES,  ACTING  DISTRICT  ATTORNEY. 


Mr.  Miles  began  by  saying  that  he  thought  the 
qiieslioa  made  |ir<'ininure  .micI  unneces-ary,  and 
that  ihe  discussion  iui;;hl  hnve  b^t-n  preven  ed  liy 
simply  ai'cepiing  the  reiurii  to  ihe  Writ  iiiad^^  orf] 
Cfiii/s,  as  hi^  %VMs  not  awaie  tHai  tlie  Act  iiuide  it: 
incuuibcni  on  hi(n  lo  ak  the  Court  i.o  comp-l  an| 
aii>wer  oil  oa' h,  to  evt- ry  Writ  of  Girnishrnent 
which  is>ued  ;  but  ih-ii  to  have  ado(>tecl  litis  course,' 
wou  d  lave  been  to  allow  the  iuipuiaiious  cast  up- 
on the  law  to  go  unanswered.  Therefore,  the  i-*- 
8ue  of  the  const  tution  ility  of  the  liw  itselt",  whi' h 
was  tendrred,  wa- acceptf  d  FurihesHUie  rcasur.>, 
no  point  i»  made  as  to  he  mode  in  which  the  qne^ 
tiou  is  raised,  allhoiiiih  it  Is  subiuilte'l  tiiat  a  De- 
iiiurrrr  is  not  the  proper  mole,  ihat  l>eing  a  tech'  i- 
cal  moile  of  t^  s'ing-  n  technical  ([Ur'^tion,  and  ordy 
lies  where  the  objeetioii  taken  appears  i.i  the  pleadi 
ings  thcm-clves. 

it  never  wis  heird  ofthiit  !o  a  Writ  of  Assuni^il 
for  debt,  the  defend  mi  conl  I  de'uur,  either  becr.u-'e 
he  WHS  not  hound  to  p  ly  the  debt,  or  bfcaune  the 
pla'nlilfwas  un^ler  a  le^al  disaii  iiy  'Ociciim  ii,rind 
lea^t  o(  Jill,  because  the  delendiiii!  lU'egcd  that  it 
was  mean  and  d  shonorable  in  the  plaintilf  to  sue  ;or 
the  debi.  But  waiving  a  1  tethni  al  ani  Ibrmrtl  oh- 
j-ciions,  he  proceeded  to  discuss  the  ca-e  on  its 
meiiis.  And  here  he  ihou<5^hl  he  iifaht  be  pHrdoiv 
ed  far  making;  a  few  reinaiks  in  relation  to  his  own 
pL)>iiion  and  connection  wi  h  the  case. 

Wi.i  e.  ou  I  he  one  haud.ii  was  certainly  a  matter  of 
regret  that  the  Confederate  Slates  should  not  be 
rcpiesenied  on  this  iinporiant  occasion  by  the  ot-: 
ficer  o'  its  own  ap()i>intment,  who  would  have  been! 
^o  much  more  eiinal  to  the  la^k,  on  the  other  hand.! 
he  iiiighi  e  teem  it  his  g  lod  foitune,  that  while  thati 
Irieiid,  to  whose  partiality  he  owed  his  appoini-[ 
mcnt  to  his  present  po.sitijn,  was  in  discharge  ol 
duties  to  his  country,  in  which  he  had  already 
won,  and  would  continue  to  win,  laurels  fiir  him-^ 
sell,  hy  his  gdmiry  and  daring,  he  had  allowedj 
him  the  opportuniiy  of  servinsf  that  same  coumry,! 
in  a  post,  -he  peiform-mce  of  the  duties  of  which. 
although  less  brilliant  anl  d  szzling,  were  not,  lie 
hoped,  less  necessary  and  useful.  And  that  al- 
thou'^h  he  felt  opiires>ed  with  the  re-ponsibility  ol'i 
h  s  position  in  liting  cal-ed  upon  to  defend  the  ac-l 
tion  of  our  Government  in  so  impoitant  a  matter 
and  against  such  power  and  inlluence  as  were  ar- 
rayed agiiiii-t  h'ln,  he  yet  gained  confidence  iVoin 
the  cause,  and  would  endeavor  to  carry  i'lto  ihe 
conte>t  in  th>s  arena,  ihe  same  spirit  which  his 
gallint  friend  did  into  the  field  ofba'tle;  and  that 
even  if  he  should  be  overwhelmed  iiy  the  odds 
against  him,  he  would  be  sustained  by  the  fu-t  ihat 
thc-e  feariul  odds  were  encountered  in  the  path  of 
duty,  in  the  cause  of  his  country,  and  the  defence 
of  its  Government. 

He  proposed  to  argue  the  paints  involved,  ac- 
cording  to  his  own  method  and  arrangement,  with- 
out interrupii^n  bv  any  attempt  to  reply  to  the  ar 
gumeiits  which  had  been  adduced  by  the  respon 
dents.     This  he   should   leave   to  be   done   by  his 


coHeasue,  the  Attorney  General.     He  proposed  to 
|diseu-s  the  questions  on  the  following  ground-: 
I     First      The    right    to    seciiie^ter  or  confiscate  all 
Ipropcity    and  debis  of  alien  enemies  as  a  sovertifftt 
\rigki. 

j  S^co/ifl.  Thti  ri.s'ht  and  power  of  the  Congress 
lof  the  Confederate  States  to  exercise  that  sove- 
!reigii  right. 

I  Thiid  The  mnd''  prescribed  by  Congress  for 
jcarrs  iii^  the  right  and  poior.r  inio  ttfect. 
i  Fui'ith.  The  proprieiy  and  policy  of  exercising 
iihe  right  during  the  i  xi>ting  w  nr. 
:  The  (ir-t  pi  iiiciple  conten  led  fr  is — that  a  Sia'e 
has  a  right  lo  confiscate  uU  properly  of  the  enemy 
found  within  iis  Itniory,  on  ihe  l)reak'ng  out  of 
jwar.  That  this  right  i.-  an  inherenl  sovereign  right, 
'and  the  Stale  'S  iespon>ible  fjr  the  exerc  se  of  it, 
loiily  ill  its  pul'ttral  capicity,  'o  the  country  upon 
j who.-e  c  tiz  ns  ilie  exeici^e  of  the  right  opentes. 
JTh-  rigor  of  ihi»  rule  may  be  relaxed  by  the  sove- 
Ireign  will,  and  in  practice  it  is  very  general/ 
irelaxed — either  as  to  t  e  persons  ujion  whom  ii  is 
jio  operiite,  as  is  ilone  in  the  ease  ot  express  treaty 
stipulations  between  nations  not  to  exercise  the 
right  as  to  each  other's  citizens  ;  or,  as  to  the  sub- 
\ject  matter,  upon  wh  ch  it  is  to  operate;  as  for 
example,  the  limitation  that  the  dei>is  due  by  the 
Siaie  itself,  even  to  the  enemy  Siate, or  its  cilizensi, 
■hail  not  be  coiificated. 

There  have  been  miny  mitigations  of  this  rule 
which  the  wise  and  humane  policy  ofmodern  times, 
through  the  civilizing  Hud  humanizing  effects  ot 
commerce  have  intiodiiced  into  practice,  but  how- 
ever much  these  may  elleci  ths  exerci.fe  of  the 
right,  ihey  cannot  impair  {he  right  itself 

This  IS  the  principle  as  laid  down  by  every 
writer  on  international  Law,  and  by  every  Court 
of  every  coiuiiry  which  has  been  called  uiton  to 
adjudicate  sueh  questions.  The  only  modiiicHtion 
of  the  rule  which  has  ever  been  contended  lor  is, 
that  the  ;<raf«/cB  of  nations  in  modern  limes  lo  for- 
l)ear  the  exercise  of  this  right,  has  introduced  a 
principle  into  the  tnoderti  liw  of  naiions  winch  ab- 
rogates or  modifies  the  right  itself  To  thi.s  ii  is 
answered  :  H^st,  ihat  no  such  usHge  can  be  shown 
n  exist;  second,  that  no  such  cu-tomary  usage  of 
nations  even  if  proved  to  ext-t,  can  take  away  a 
right  inheient  in  a  sovereign  Stfite  :  third,  that  no 
such  usiige  can  make  a  change  in  the  law  of  nations 
Without  tile  express  assent  of  the  nation  claiming' 
;to  exercise  the  right.  "The  usage  is  only  a  guide 
which  the  sovereign  follows  or  abandon*  al  his 
will."  And  t'uith-'r,  that  such  arguments  are  not 
properly  addressed  to  t!ie  Courts  C/f  the  nation 
which  his  determiu'  d  to  exerci?e  this  right  '•l''or 
o  the  argument  denying  the  right  ofthe  iSiate,  on 
the  ground  that  her  power  was  restrained  bv  the 
|;/i«i^«r9i  law  of  nations,  it  would  be  answered  that; 
the  nation  was  to  justify  her  own  conduet,  hut  that\ 
her  Courts  were  lo  obey  her  lows.''''  (.)  udge  Chase  in 
Ware  vs  Hylton  3  Dall.,  229. 
j     The  question  of  the  exerci-e  ol  the  right,   being 


ARGUMENT  OF  MR    MILES. 


17 


one  of  expediency  and  policy,  dependent  on  politi- 
cal considerations,  "like  all  other  question's  ot  |)oli- 
cy,  it  is  proper  forthe  consideration  of  a  department 
which  can  inodly  it  at  will,  not  for  the  consideration 
of  a  department  which  can  pursue  only  the  law  as 
it  is  wriiten.  It  is  proper  (or  the  consideration  ol' 
the  Legislature,  not  of  the  Executive  or  Judiciary'' 
As  authorities  for  these  posiiions,  he  relerred  to 
the  suniniaiies  of  the  principles  contained  in  the 
following  text  writers: 

1  Kent,  56-60.  Wheaton's  Elements  of  Interna- 
tional Law,  (Lawrence's  Ed,.)  366-379;  and  citing 
Grotins,  BynkershcEcIc,  Quest  Jiir.  Pul>.,  lib  l.ch 
2-7.  Vaitel  hi).  3,  ch.  4.  Also  to  the  case  of  Brown 
f;j.  United  States,  S  Cranch,  120. 

Even  by  tho.-e  who  maintain  the  most  liberal 
views  as  lothe  relaxation  of  iherigh  tof  confiscition, 
ii  has  always  been  adinitted  that  the  right  is  pro 
peily  e.xerl■i^ed  in  reialiaiion.  The  rule  of  reci- 
procity has  been  always  recognized,  not  only  by  the 
ileclaraiion*  ol  nations,  as  lu  Magna  Ckarta,  but 
praciicallv  by  every  nation  engaged  in  war.  (The 
Santa  Cruz,  1  Rob,,  64  )  That  you  bhall  mete  out 
to  your  enemy  the  same  measure  which  he  mea- 
sures 10  you. 

The  right  of  the  Stale  over  the  properly  of  an 
enemy  in  its  possession  is  the  same  in  extent  a.* 
the  right  over  h  s  person.  And  although  the  law.« 
of  Chrisiitniiy,  civilization  and  of  nations,  all  con- 
cu  in  requiring  that  the  persons  of  the  enemy 
shall  be  treated  with  humaniiy.and  even  kindness, 
yet  has  the  right  of  retaUatwn,  as  a  measure  of 
stern  nei-essity,  never  been  questioned. 

Bui  it  has  been  contended  that  there  is  this  limi- 
tation to  the  right  lo  coniiscate  enemy's  property — 
that  private  debts  due  to  the  citizens  of  the  enemy's 
conniry  shall  not  be  conrt>cated. 

Thf  right  to  contiscate  debts  contracted  by  indi- 
viduals in  time  of  peace,  and  which  remain  due  to 
the  subjects  of  the  er.einy  ai  the  declaration  of 
war,  tests  upon  the  same  principles  as  that  con- 
cerning enemy's  tangible  property,  found  in  the 
country  at  the  opening  of  the  war,  and  indeed 
there  is,  and  can  be  no  distinction  in  reasoi,.  The 
tangible  property  is  just  as. much  acquired  under 
the  sanction  of  the  law,  and  without  anticipation 
of  war  as  the  debts  were  contracted,  and  very  little 
reflection  will  show  the  injustice  of  making  any 
dictinciion. 

Shall  the  real  estate  of  an  alien  enemy  within 
our  limits,  occupied  by  a  citizen,  be  seized  and 
confiscated,  while  ihe  debt,  which  it  may  be  is  due 
to  the  same  alien  enemy,  by  the  same  citizen,  for 
the  rent,  is  not  confiscated;  and  the  debt  due  by 
another  citizen  for  the  purchase  money  of  other 
real  estate  from  the  same  alien  enemy  belore  the 
war,  be  exempt?  Jt  would  be  unreasonable  and 
unjust. 

But  it  is  upon  the  expediency  of  exercising  ihe 
right  of  confiscation  as  to  dibts  that  most  has  been 
said. 

He  submitted  that  the  rule  is  not  only  in  reason 
the  same  as  lo  debts,  as  in  relation  to  tangible 
property,  but  thiit  it  is  based  upon  the  authority 
and  practice  of  the  Law  of  Nations.  (Cited  1  Kent, 
01;  Wheaton's  Inter.  Law,  367;  Story  in  Brown  vs 
U.  S.,  8  Cr.,  140,) 

It  not  only  is  sanctioned  by  Ihe  ancients  and  by 
the  Civil  Law,  but  is  asserted  i)v  Gro'ius,  PnflVi)- 
jrigmS',  Bynkershii'ik  and  Vattel,  with  the  qualih -a- 
nSn  before  alluded  to,  that  debts  due  by  the  .State 
^li.'ill  not  be  i-otiliscnted.  Alihoimh  some  of  these 
\vr  lers,  piiriicuiarlv  Vat'el,  while  they  do  not  deny 
tiie  right,  still  >-oiitead  that  there  ha*  been  a  relax- 
3 


aiion  of  the  rule  in  the  practice  of  modern  times; 
yet  they  admit  at*  the  same  time  the  right  by  way 
of  reprisal  or  retaliation,  and  by  the  exception 
which  they  make  as  to  public  debts  coutirra  the 
general  rule. 

Vattel  says,  (quoted  in  3  Ball ,  226,)  "What  I 
have  said  of  things  in  action  being  rtghtfnlly  con- 
fiscated, holds  thus;  If  the  Prince  exacts  from  his 
subjects  what  they  owed  lo  the  enemy,  it  is  right- 
fully paid;  if  he  shall  not'  have  exacted  it,  peace 
being  made,  the  former  right  of  the  creditor  re- 
vives; accordingly  it  is  for  the  most  part  agreed 
among  nations,  that  things  in  action  be;'ng  confis- 
cated in  war,  the  peace  l>eing  made,  those  which 
were  paid  are  deemed  to  have  perished  and  remain 
f.rtivct,  but  those  not  paid  revive  and  are  restored 
lo  the  true  creditors."  (Vatt.  Lib.  4,  522 — he  wrote 
in  17tl7) 

The  same  principle  has  been  recognized  by  the 
common  law  of  England.  Lord  Hnle  (1  Hale's  P. 
C  ,  95)  lays  it  dow^n  that  '■  debts  and  goods  found  m 
the  realm  belonginf<  to  alien  enemies,  belong  to  the 
King,  and  may  be  seized  by  him." 

And  the  right  has  been  atfirmed  in  the  following 
cases  in  England,  which  may  be  <-ited  in  response 
lothe  challenge  of  counsel  lo  produce  any  dtcision 
of  any  tribunal,  declaring  the  right  to  confiscate 
debts,  according  to  the  provisions  of  International 
Law. 

In  the  Attorney-General  vs.  Weeden  &;  Shales,  Sir 
Thomas  Parker's  Rep.  267.  it  was  held  that  ckoses 
/?t  flf^joM  belonging  to  an  alien  enemy  are  forfeita- 
ble to  the  Crown  on  inquisition  (ijund. 

In  Wright  vs.  Null,  H.  Black's  Rep.  149,  Lord 
Thurlow  declaied^hat  an  Act  o(  the  State  ot  Geor- 
gia passed  in  I7"52,  for  the  confiscation  of  the  real 
and  personal  estate  of  Sir  James  Wright  and  also 
his  dfbts.  was  the  law  of  an  independent  country, 
and  the  law  o(  every  country  must  be  regarded  in 
Courts  of  Justice,  whether  the  law  was  barbarous 
or  civilized,  wise  or  toolish. 

In  Follioit  vs.  Ogden,  H.  Black  Rep.  135,  lord 
Loughborough  declared  an  Act  o/ the  Slate  o(  New 
York,  confi<cating  the  estate  of  plaintiff  of  full  va- 
lidity. And  alihough  this  case  was  reversed  in 
error,  Ogden  vs.  Folliott,  3  T.  R.  726,  Lord  Kenyon 
based  his  judgment  upon  what  he  niaintained  as  a 
fact,  that  the  Act  of  the  State  of  New  York  was  not 
an  Act  of  an  independent  Stale,  in  which  case  he 
admitted  it  must  have  been  respected,  but  of  a 
Province  in  rebellion  against  the  Crown — and  that 
although  ihe  Act  was  passed  alter  New  Y'ork  had 
asserted  her  independence,  (in  1776,)  yet  as  it  was 
l)efore  that  independence  was  recognized  by  Eng- 
land (in  17SS,)  it  was  o:  no  more  validity  than  if  the 
Isle  of  Wight  was  to  set  up  lor  itself  and  and  claim 
to  make  laws. 

Erskine.  of  counsel,  contended  for  the  doctrine 
as  laid  down  in  Wright  vs.  Null. 

This  case  would  be  good  law  in  the  United 
States,  which  siill  claims  that  we  are  rebels  and 
not  an  independent  nation. 

In  short  Judge  Story  was  justified  in  saying  as 
he  did  in  Brown  rs.  United  States;  (8  Cr.inch.  140,) 
"I  take  upon  ine  to  say  that  no  jurist  ol  reptitaitoa 
can  be  found  who  has  denied  the  right  of  confiscat- 
ing enemies  debts," 

The  same  question  wa;  discussed,  and  the  tight 
to  confiscaie  delit*  claimed  to  be  as  ample  as  in 
reeard  to  tangible  property,  in  the  Supreme  Court 
of  the  United  Slates  in  the  case  of  Brown  I'j  United 
States,  (S  Cr.inch,  120.)  also  of  Ware  vs.  Hyl  o^^.  (3 
Dallas,  199,)  in  which  "the  right  w-as  expliotlv 
asBeried  by  some  of  the  Judges,  r«luciaDtly  admit- 


18 


THE  SEQUESTRATION  ACT. 


ted  by  oihers  and  denied  by  none."  It  was  in  the' 
dissenting  opinion  in  this  case  ih^  Judse  Iredell 
used  the  iolUnving  btnkinz  language  in  regard  lo 
the  alleged  chonge  ol'  the  law  of  nations,  by  ihe 
custom  of  moilern  nations  not  to  confiscate  debts:' 
"However,  this  couniry  might  have  bt-en  consider- 
ed bound  to  ob>erve  such  a  law  in  regard  to  any! 
nation  recognising  its  inJep<:>ndence,  and  wtio  ob-l 
served  it  on  her  own  part,  (lor  undoubtedly  a' 
breach  on  one  side  would  jusiify  a  non-observance' 
on  the  other)  it  did  not  necessarily  follow  that  the 
people  of  this  couniry  were  hound  to  observe  it  lOj 
■A  nation,  which  not  only  did  not  recognize,  but' 
sought  10  destroy  their  very  existence  as  an  inde- 
pendent people,  considering  them  in  no  other  light 
than  as  traitors  whose  lives  and  fortunes  were 
forfeited  lo  the  law.  "The  people  of  this  country 
literally  fought  jiro  arts  et  Jocio,  and  therefore 
means  of  defence  whirh,  when  inferior  objects 
were  in  view,  might  not  be  sirictly  justifiable,  miglil 
in  such  an  e.xtreniity  become  so,  on  the  great  prin- 
ciple on  which  all  laws  of  war  are  founded,  self- 
■preservation.''' 

The  laier  English  writers  on  International  Law, 
follow  the  rule  as  laid  down  by  the  American 
Judges  and  commentators.  (See  Manning's  Law 
of  Nations,  127.) 

The  praetiee  of  nations  may  al>o  be  referred  to 
as  evidencing  the  recogniiion  of  the  right  even 
where  there  has  been  a   tbrbearance  to  exercise  it 

In  the  English  answer  lo  the  memorial  of  thej 
King  of  Prussia,  in  relation  to  the  Silesian  loan,  in! 
1752,  the  right  to  confiscate  even  public  debts  due 
by  the  State  was  not  denied,  although  the  expedi- 
ency and  morality  of  such  confi>caiioii  was  denied. 

In  the  war  between  Great  Britain  and  France,  in 
1793,  the  former  jjower  sequestrated  the  debts  and 
the  property  belonging  to  subjects  of  her  enemy, 
which  decree  was  retaliated  by  a  countervailing 
measure  on  the  part  of  Great  Britain.  (Wheaion's 
Inter.  Law,  3S0  ;  1  Phillimore's  Inter.  Law,  71.) 
By  the  Treaty  of  Paris,  in  1S14,  the  sequestratiins 
were  removed  on  lioili  sides  and  indemnity  given 
But  as  Mr.  Wheaion  remark's,  "  the  engajjement 
thus  extorted  from  France  may  be  considered  as  a 
^eve^e  application  of  the  rigiits  of  conquest  to  a 
fallen  enemy,  rather  than  a  measure  of  eien  hand 
ed  justiee,  since  it  does  not  appear  ihat  French 
property  seized  in  the  ports  of  Great  Britain,  in 
anticipation  of  ho.-iililies  and  subsequently  con- 
demned as  droits  ol  Admiralty,  was  re^tored  under 
the  Treaty." 

In  1807,  the  Danish  ships  and  other  property 
which  had  been  seized  in  British  ports  and  on  the 
high  seas,  before  the  actual  declaration  of  hostili- 
ties, were  condemned  by  the  retrospective  opera- 
tion of  the  declaration.  The  Danish  Government, 
in  retaliation,  issued  an  Ordinance  sequestering 
the  dtbts  due  from  Danish  to  British  subjects,  and 
caused  them  to  be  paid  into  the  Royal  Treasury, 
The  Engli.^h  Court  of  King's  Bench  held  that  this 
Ordinance  was  not  a  legal  defence  to  a  suit  in  Eng- 
land (or  such  a  debt,  not  being  conformable  to  the 
iisaae  of  nations.  (Wolff  vs.  Oxholm,  6  Maule  i5c 
Selwyn,  92.) 

This,  however,  is  the  only  case  that  can  be  found 
lo  this  effect,  and  it  is  submitted  is  in  the  teeh  ofall 
authorities  and  principle,  and  only  evinces  how 
England  was  swerved  by  her  selfish  inierest,  fir 
the  property  in  Danish  vessels  condemned  in  Eng- 
land amounted  to  ,£1,205,000,  while  the  debts  .-e- 
questered  in  retaliation  amounted  to  only  £200,000 
The  Danish  Government  offered  to  deduct  this 
from  the  value  of  the  ships  condemned.     This  was 


decUitfd,  and  Parliament  indemnifiedits  merchants. 
jThis  was  a  political  rather  than  a  judicial  decision. 
(See  Wheaton's,  Inter.  L  Ssl,  note.) 
I  Srcond.  Thti  right  ol  a  State  to  confiscate  o/Z  pro- 
perty of  aliea  enemies  witliin  it>  territorial  limits, 
according  to  its  own  view's  of  justice  and  policy, 
ibeing  esiablished,  the  next  point  is  to  consider  by 
jwhom  that  right  is  to  be  exercised. 

It  is  submiited  that  the  right  to  declare  the 
'sovereign  will  in  this  regard  is,  in  the  Confederate 
.States,  vested  in  Congress,  First,  by  the  grant 
jof  an  express  substantive,  power  to  that  eflect  in  the 
Cons-litiitioH.  (Art.  1,  Sec,  6,  clause  11.)  Congress 
shall  have  power  "lo  declare  war,  grant  letters  of 
maniiie  and  reprisals,  and  make  rules  concerning 
captures  ov-  lavd  and  loater!'^  The  latter  clause 
exiends  to  rules  respeciin°r  enemy's  property 
found  within  the  territory,  ^nd  is  an  express  grant 
to  Congress  of  the  power  in  question,  as  an  inde- 
dendent  substantive  power  not  included  in  that  of 
making  war. 

For  which  position  he  cited  the  authority  of  C. 
J.  Marshall,  in  Brown  vs.  U,  S.     (S  Cranch,  120  ) 

But  if  not  properly  referred  to  this,  as  an  inde- 
pendent power,  it  is,  nevertheless,  plainly  and  ne- 
cessarily included  in  the  war-making  power, 
which  power  is  expressly  given  to  Congress  and 
expressly  forbidden  to  the  States.  From  the  very 
nature  of  tiie  case,  all  powers  incidental  to  the 
carryin"g  on  of  the  war  must  be  exercised  by  the 
'coinuion  agent  ofall  the  Slates  engaged  in  the 
Iwar,  to  insure  uniformity.  But  Congress  is  vested 
iwiih  the  power  to  "make  all  laws  nece^sary  for 
■carrying  into  execution  the  poweis  expressly  deU- 
gdted  by  the  Cons'ituiiou  tothe  Provisional  Govern- 
jment,"  (clause  17.)  The  reasoning  in  the  cases 
before  cited  shows  that  the  question  of  whether 
the  right  of  confiscation  shall  be  exercised,  being 
Inot  an  immutable  rule  of  law,  but  a  question  of  ex- 
pediency, it  is  proper  for  the  consideration  of  the 
legislative  department.  The  power  over  the  pro, 
\perty  oi  alien  enemies  is  co-extensive  with  lliatcver 
itlie  7;f«o/(A' of  alien  enemie*,  and  must  be  clashed 
'with  it.  This  power  must,  therefore,  be  an  inci' 
jdent  of  the  war-making  power,  for  it  is  the  very 
[State  of  war  which  renders  this  property  in  the 
limits  of  the  State  confiscable,  the  overt  act  of  the 
Government  by  the  expression  of  the  legislative 
will,  and  some  judicial  Act  done  under  it,  is  only 
necessarv  to  divest  the  title.  (Story  in  Brown  vs. 
U.  S  ,  8  Cr.  143  ) 

It  will  not  do  to  say  that  is  not  a  necessary  inci- 
dent of  the  war-making  power,  because  wars  »re 
carried  on  without  exercising  this  power.  So  are 
wars  wa".'ed  without  the  necessity  of  resortii  g  to 
retaliation  as  to  prisoneirs,  and  yet  ■will  it  be  pre- 
tended that  this  is  not  a  necessary  incident  ol  the 
war-makii.g  power?  It  is  an  incident  of  the  exer- 
cise of  the  sovereign  right  to  make  war,  and  can 
and  must  be  exercised  by  the  same  agency  which 
exercises  that  power.  It  the  States,  who  are  the 
only  sovereigns  under  our  system,  delegate  to  their 
agent,  the  General  Government,  in  any  of  its  de- 
partments, the  power  to  exercise  the  right  ol  sove- 
reignly over  any  subject  mailer,  e.  g.,  war  and  peace, 
that  agent  can  exercise  that  sovereign  right  in  as 
ample  and  unrestricted  a  manner  as  the  Sovereign 
himself  Hence  absolute  power  being  given  to 
Conoress  to  declare  M'ar,  and  being  forbidden  tothe 
Slates,  the  power  of  Congress  in  this  particular  is  as 
full  and  unrestrained  as  that  of  the  Emperor  of 
France  or  the  Czar  of  Russia.  The  constiiutional 
restriction  is  as  to  the  subject  matter.,  the  jurisdiction 
over  which  is  given  to  Congress. 


ARGUMENT  OF  MR.  MILES. 


19 


To  the  argument  urged  with  80  much  ibrce,  that  innd  right  iii  the  modes  of  procedure  to  perfect  this 
the  Congress  under  the  old   Articles  of  Conledera- 'claim  and  to  divest  his  litle.^ 

tion  did  not  claim  the  right  Jo  confiscate,  but  Next,  the  Congress  has  power  given  it  by  the 
recommended  to  the  several  States  to  pass  such  States  to  operate  l-tv  its  laws  directly  upon  the  ciii- 
laws,  it  is  submitted  that  the  answer  is,  thai  zens  of  the  Slates  (or  the  purpose  ot' efieetualing  a 
under  the  Ariicles  of  Confederation  Congress  had|  constitutional  purpose.  And  having  the  jiower  it 
no  power  to  operate  directly  upon  the  citizens  or  can  declare  the  duly  of  the  cilizeu  in  this  behalf. — 
the  property  in  the  several  States:  and  that  as  the  If  (he  citizen  holds  properly  of  an  alien  enemy,  he 
several  States  furnished  their  quotas  of  men  and  /lo/ds  property  to  the  possessioti  of  which  the  Govern- 
money  to  carry  on  the  war,  the  States  were  lo  /.'lent  is  e>/tit/ed,  nnd  il  can  comptl  him  by  all  the 
confiscate  the  property  of  alien  enemies  within  means  known  to  its  laws  to  give  up  the  properly 
their  limits,  "and  to  apply  the  same  towards  alle  and  also  to  disclose  fully  what  he  does  control. — 
viaiing  and  lessening  the  burdens  and  expenses  of  The  only  limitation  which  can  be  placed  upon  the 
the  war,  which  must  otherwise  fall  very  heavy  oni|[)Ower,  seems  to  be  that  such  means  shall  be  used 
the  distressed  inhabitants  ot  the  Stale,"  as  it  is  as  are  already  known  to  the  law  in  cases  of  a  like 
expressed  in  the  preamble  to  the  Confiscation  Aci   nature. 


of  South  Carolina,  1782,4  S.  L.,  517. 


The  chief  objection   which    is  urged  in  this  con- 


It  was  this  very  deficiency,  among  others,  in  the!|ueciion  (o  the  constitutionality  ot  the  law  of  Con- 
power  of  the  Confederacy  which  the  Constitution  ifress,  is  that  the  »«0(f(!  which  it  prescribes  for  as- 
vas  intended  to  supply;  to  substitute  a  Goirr//  cerlaining  what  property  and  etfects  of  alien  ene- 
ment  in  lieu  of  a  league.  Under  the  Constitution  o(  mies  are  held  by  its  citizens,  is  unknown  to  the 
the  United  States  and  of  the  Coniederate  Slates!  common  law,  and  is  against  common  right.  That 
Congress  delrays  the  expenses  o(  ilie  war,  ami  isjiis,  it  must  be  intended  against  the  common  right 
«mpowered  to  levy  it  upon  the  citizens  of  the  jol  the  citizen, lor  the  alien  whose  property  it  wa*  has 
States  respectively,  and  hence  the  proceeds  of  the  no  longer  any  rights.  The  citizen's  right  can  only 
confiscation  go  into  the  general  treasury.  (See  note  be  in  relation  to  the  thing  itself,  or  as  to  the  uwde  of 
at  (he  end  )  procedure    again>t   him.    in    relation   to  the  thing. 

The  Act  of  Virginia  discussed  in  Ware  ii.s  :Now,  the  righis  of  all  citizen-*  in  the  thing  itself, 
Hylton  it  must  be  borne  in  mind,  was  passed  Congress  has  not  only  not  attempted  to  disturb,  but 
6e/or«  the  adoption  of  the  Articles  ol  Confederation,  has  expressly  proiected    and    guarded   in  the  most 

Third.  Having  shown  that  the  [)ower  of  coiifis-  ample  manner. — to  the  extent  of  granting  greater 
cation  isasovereignriaht, and  that  the  Act  declaring  tacililies  in  obtaining  their  rights  than  they  would 
it,  is  within  the  constitutional  power  of  Congress  have  had,  but  for  the  possession  which  the  Gov- 
to  pass,  the  only  question  which  remains  is  whether  ernment  takes  of  that  upon  which  the  lien  attaches, 
the  mode  and  manner  prescribed  by  Congress  in  In  some  ca^es  it  anticipates  the  payment  of  debts 
carrying  out  its  constitutional  power  in  this  re-  due  to  citizen*.  Ol  wiiat,  then,  does  he  comphiin  ? 
spect,  is  ;«  conflict  with  any  provision  c^i  the  Con-  .        ■      ~ 

stituiion? 

It  may  be  asked,  in  the  language  of  Judge  Chace, 
in  Ware  vs.  Hylton,  3  Uall.,  224.  '-Suppose  a  tedure,  prescribed  in  the  eighth  section  of  the  Acl. 
general  right  to  confiscate  enemy's  property  is  ""known  to  the  law  ?  Is  this  mode  of  procedure 
admitied  to  be  in  Congress,  and  Congress  had  con  ^ssentially  ditierent  from  a  cause  in  the  Exchequer 
fispated  ail  enemy's  property  within  the  Confederate  Chamber  in  Enghind  in  a  suit  insutnted  upon  the 
States,  including  private  debts,  would  it  be  per-  fiction  thatthe  defendant  is  indebted  to  the  Crown? 
milted  to  conieid  in  any  Court  of  the  Confederate, ifJo£,*  ''  dillcrin  principle   from    a  Bill  ol  Discovery 


Why,  that  the  Government  calls  upon  hiin  to  de- 
clare what  he  has  in  his  possession.  Does  this  dis- 
closure work  him  any  harm  ?      Is  the  mode  of  pro- 


ijtates  that  Congress  had  no  power  to  confiscate 
such  debts  by  the  wo<^("??i  law  of  nations  ?  If  the 
right  is  conceded  to  be  in  Congress,  it  necessarily 
follows,  that  Congress  is  the  judge  of  the  right  as 
to  the  extent,  mode  a<id  nianiier." 


in  Equity,  ac'companicd  as  it  is  by  searching  inter- 
rogatories to  purge  the  conscience  of  the  respon- 
dent ?  But  this  very  process,  both  the  name  as 
well  as  the  thing,  is  known  to  our  law.  By  the  law 
of  Foreign  Attachmeni,  as   it  exists  in  South  Caro 


rri  1       1  •   1  r,  II  .  •     I  ''"ii  a'lil  founded  on   the    custom    ot  London,  any 

1  he  mode  which  Congress  has  chosen  to  exercise  I  ,,11   „^  ,  ^,^  ,;.„„,- „„      ,         ,    j   i.  • 

^  '  alleaed  creditor  ol  an    absent    debtor   may  issue  a 


this  right   of  war,  is  not    by  confiscation  for  the  cn- 


i"Writ  of  Garnishment,"    directed    to  any  one  who 


richina  of  its  Treasury,    but  by  a  sequestration  lor  ii.„,  in  .        <•    ,i         i 

•   1  ^    ,     .■       ^  J  i-    .     has,    as    he  alleges,    any    properly   of    the    absent 

a  special  purpose,  name  y   or  the  indemnity   of  Us  i,i   ,,' ^,  ,•„    .  ■.  „    „.^  .    „     \,  '      '  .   j  .     i 

_;.;' -I     .,'      ,   '  ■'        •         1  ,       .,        •'.•__    _,.i!oelitor  in    n\»  puiner,  possexsmu,  cuHody  av   control, 

or  to  one  who    is   indebted  to   the    absent  debtor. 


citizens  ibr  the  losses  occasioned  by  the  action  of' 
the  United  States  or  any  of  the  Stales  of  the  United 
States. 

Congress  ha«,  in  the  first  place,  ab.tulcte  control 
over  all  the  property  of  the  enemy  within  our  tcr 
rilorial  limits,  by  virtue  of  the  declaration  of  war 
which  renders  the  property  confiscable,  and  the  Act 
of  Congress,  and  the  judicial  process  Ibumled 
thereon,  completely  divests  the  title  of  the  dlicn 
enemy. 

The  alien  enemy  has  no  rights;  he  is  entitled 
only  to  such  justice  as  shall  be  meted  out  to  him 
by  our  country  in  accordance  with  her  own  sense 
of  duty  as  becoming  to  , herself  This  disposes  of 
all  objections  as  to  the  mode  directed  to  be  pursued 
to  ascertain  the  enemy's  properly,  and  divest  the 
title — so  far  as  the  alien  enemy  is  concerned.  The 
State  claims  his  properly  within  her  limits  abso- 
lutely, and  regards  only  her  own  sense    of  dignity 


This  process,  issuing  of  course  from  the  Courts  of 
Common  Law  jnr'sdiclion,  compels  the  de- 
fendant to  disclose,  on  oath,  (ully  all  the 
property  in  his  possession  or  control,  under 
pain,  upon  failure  to  do  so,  of  becoining  lia- 
ble to  a  judgment  for  the  debt.  And  in  England, 
"where  the  gurnishee  will  not  furnish  the  neces- 
sary information,  and  it  cannot  be  otherwise  ac- 
quired, a  Bill  of  Discovery  maybe  filed  against  him 
on  the  Equiiy  side  of  the  Court,  in  order  to  oblaia 
the  requisite  information,  and  any  information 
whatever  respecting  his  transactions  with  and  the 
properly  he  holds  belonging  to  the  defendant,  and 
whether  he  has  any  or  what  lien  upon  it,  which 
information  the  garnishee  is  obliged  to  give  on  oath, 
in  his  answer,"  (Locke  on  Foreign  Attachment, 
p  16  )  Was  not  this  passage  familiar  to  the  framers 
of  this  Act? 


'm 


THE  SEQUESTRATION  ACT. 


And  this  extends  to  money  in  the  liands  of  an 
Attorney  of  ihe  Superior  Court,  who  sfhall  not  have 
his  privilege  against  Fcreign  Attachment,  (lb.  p. 
32-33.  See  Corny n's  Digest,  Title  Attachment  C, 
Turbiir.-*  ca.sp,  1  Saunders  67,  and  R^dse  vs.  Hard- 
castle,  S  T.  R,  417  ) 

The  proceeding  by  garnishment  is  even  more 
aenerally  allowed  in  other  States  of  the  Confede- 
rate Stales  than  in  South  Carolina.  In  Alabama, 
for  example,  any  creditor  in  a  buit,  even  against  a 
debtor,  who  is  not  absent,  can,  upon<artidavit,  gar- 
ni>hee  any  citizen  and  compel  him  to  answer  on 
oath,  whether  he  is  indebted  to  the  defendant.  Is 
the  proceeding  under  this  Act  more  unjusH.  or 
more  again?t  common  right,  than  is  the  pTae-j 
tice  in  the  Prize  Court  of  compelling  the  cap 
tured  crev  ,  whether  citizens  or  aliens,  enemies  or 
neutrals,  to  answer  upon  oath  the  standing  inter 
rogatories,  ingenuonsly  framed  to  elicit  the  truth  as 
to  any  interest  of  an  alien  enemy,  direct  or  indirect, 
in  vessel  or  cargo?  And  that,  although  the  witness 
may  be  the  confidential  and  trusted  agent  of  the 
alien  enemies. 

But  it  is  said  that  all  these  are  cases  of  a  suit  by 
one  citizen  against  another  and  are  fo.»  a  particu- 
lar subject  matter.  Is  the  case  less  strong  where 
the  Governmentclaims  the  property,  and  defendant 
is  one  worse  than  ontlijwed — an  enemy,  with  no 
standing  in  Court, — and  where  the  subject  mat- 
ter of  the  proceeding  is  property,  essential  to  be 
taken  from  an  enemy,  and  which  is  to  be  given  to 
our  own  citizens  as  indemnity  for  wrongs  done  to 
their  property,  and  which  property  is  already  de 
clafc'd  sequotered   by  the  Act  ? 

If  you  sirip  the  argument  of  all  which  refers  to 
the  right  of  the  alien  enemy,  you  divest  it  of  all  its 
force.  The  position  once  realized  that  the  alien 
enemy  has  MO  rt^/t^*  which  can  be  enforced — that 
the  Government  has  been  substituted  to  these 
rights,  and  that  in  reality  it  is  a  proceeding  by  the 
Government  to  obtain  the  possession  of  property 
which  it  is  entitled  to  receive  and  sue  (or  as  bailee 
lor  a  special  purpose,  and  all  the  seeming  hardships 
disappear.  The  Government  calls  upon  its  citi- 
zens to  deliver  to  it  certain  property  which  it  has 
become  entitled  to  by  act  of  law.  There  has  been 
an  escheat  of  alien's  property  tothe  State,  andeacti 
citizen  is  required  to  give  up  all  thai  he  controls, 
and  enable  the  State  to  oblain  all  ibat  it  can. 

The  generality  o{ \.\\&  proceeding,  as  operating 
upon  any  and  all  property  of  alien  enemies,  has 
been  much  enlarged  upon,  but  this  objection  is 
only  specious.  If  the  Government  is  entitled  to 
any  and  all  property  which  formerly  belonged  to 
alien  enemies,  it  is  not  strange  that  it  makes  the 
demand  for  any  and  a// such  property  from  each  of 
Its  citizens.  The  proceeding  is  in  rem,  and  moni- 
tion issues  10  bring  in  all  parties  controlling  such 
property  sought  to  be  condemned. 

The  Government  is  empowered  to  collect  the 
excise  or  the  duty  on  a// articles  upon' which  such 
duty  is  leviable  by  law,  though  its  agents  and  ihe 
generality  of  the  power,  co-extensive  with  the  sub- 
ject matter,  is  no  objection.  Where  then  is  the 
force  or  the  justice  of  the  illustrations  drawn- from 
the  proceedings  of  the  Inquisition  or  the  Star 
Chamber  ?  Plere  is  no  elTort  to  jiunish,  either  for 
heresy  or  crime.  This  is  not  a  ^ewo/ proceed  in 
any  sense.  The  hateful  tyranny  of  the  Star 
Chamber  consisted  not  only  in  its  being  without 
warrant  o(  law,  and  against  express  law^,  but  in 
the  process  to  compel  one  to  give  evidence  against 
himself  or  some  fellow-citizen  on  a  charge  of  some 
political  offence. 


Here  we  have  only  n  proceeding  for  obtainiitg 
possession  of  property,  taken  from  the  enemy,  by  d. 
law  made  in  pursuance  of  an  express  power  under 
the  Con>tiiulion,  and  vested  in  the  State  for  a 
sirecial  and  a  sacred  purpose, 

Fuiirih.  The  question  of  the  expediene-y  of  the 
law  which  it  was  proposed  to  araue,  is  not  properly 
addressed  to  the  Court,  although  most  of  the  argu- 
ments adduced  really  go  to  the  expediency  and 
policy  of  enacting  such  a  law,  and  to  the  inconve- 
niencies  which  may  arise  in  administering  it. 
These  are  all  proj)erly  addressed  to  Congress  to 
induce  them  to  modify  or  repeal  the  law,  and  not  to 
the  Court  to  set  aside  the  law. 

Many  of  the  arguments  in  favor  of  the  passage 
oi  such  a  law  have  been  already  anticipated  ;  as, 
for  instance,  the  princijjle  of  retaliation  and  reci- 
procity, and  of  reprisal,  or  the  right  of  a  nation  to 
do  itself  justice,  and  to  indemnify  its  citizens  frota 
the  enemy's  properly  in  her  power.  In  addition  to 
these,  passing  allusion  may  be  made  to  thecircunj- 
siance  that  this  final  measure  of  retaliation  was 
not  adopted  until  after  our  Government  had  aflord- 
ed  its  citizens  an  opportunity  of  protecting  those  to 
whom  they  were  indebted  in  the  United  States  by 
ipaying  the  debts  into  the  Treasury,  to  be  redeem- 
jable  at  the  end  of  the  war,  and  thus  placing  them 
beyond  the  reach  ol  the  Government  itself.  (Act  of 
21st  May,  1S61.) 

'  As  to  the  inconveniences  to  our  citizens  which 
may  arise  in  carrying  the  law  into  execution,  so  far 
las  these  nconveniences  are  not  suggested  either 
by  too  great  a  sympathy  with  the  alien  enemy,  or 
by  disappointment  at  finding  that  tlje  war  has  not 
discharged  them  from  the  obligation  of  their  debts, 
they  are  to  be  met,  and  if  pos  ibie  overcome,  by  * 
fair  and  liberal  construction  of  the  law  by  ihe' 
Courts — and  where  such  construction  cannot  meea 
the  difficulty,  by  a  calm  and  earnest  appeal  to  the 
power  which  made  the  law,  aetuated  as  it  is  by  the 
highest  desire  for  the  public  welfare.  Mistake* 
and  errors  have  doubtless  been  made  in  every  de- 
partment of  the  Government,  but  they  are  not  best 
remedied  by  attacks  and  invective^  on  the  Govern-' 
mem  either  in  its  executive  or  legi^lative  depart' 
ment-;  either  for  the  conduct  of  the  war  or  the 
making  of  the  laws. 

Note — The  followir>g  extracts  from  the  resolu-' 
tions  adopted  by  the  Congress  of  the  United  Slates 
on  the  6ih  of  March,  1779,  in  relation  to  the  power 
of  Congress  to  establish  a  tribunal  fortherevision  of 
the  decisions  of  the  Courts  of  the  States  in  prize 
causes,  not  known  at  the  time  of  the  argument,  ar^ 
here  inserted  without  comment,  as  interesting  in* 
connection  with  this  question  : 

"That  Congress  is,  by  these  United  States,  in- 
vested with  the  supreme  sovereign  power  of  war 
and  peace. 

'•That  the  power  of  executing  the  law  of  nations 
is  essential  to  the  sovereign  supreme  power  of  war 
and  peace. 

"That  the  legality  of  all  captures  on  the  high 
seas  mu>tbe  determined  by  the  law  of  nations. 

•That  the  authority  ultimately  and  finally  to-  de- 
cide on  all  matters  and  questions  touching  the  law 
of  nations,  does  reside  and  is  ves'ed  in  tire  sove- 
reign supreme  power  of  war  and  peace. 

"Thai  a  control  by  appeal  is  necessary,  ra  order 
to  compel  a  just  and  uniform  execution  of  the  law 
of  nations. 

That  the  said  control  must  extend  as  well  over 
the  decision  of  juries,  as  Judges  in  Courts  for  de- 
termining the  legality  ofcaptures  on  the  sea;  other- 
wise juries  would  be  possessed  of  the  ultimate  su- 


ARGUMENT   OF  MR.  MILES.  21 

preme  power  of  executing  the  lawof  nationsinall  nations  complaininfi:  of  a  violation  of  neutralities, 

cases  of  captures, and  might, at  any  time,exeroi>ethe  ot'treaiies  or  other  breaches  of  the  law  of  nations, 

same  in  such  manner,  as  to  preveiita  possibility  ofbe  and  would   enable   a  jury  in    anyone    Slate,  to  in- 

ing  conirolled;  a  construction  which  involves  many  volve  the   Uniied   States  in  hostilities;  a  construe- 

inconveniences  and  absurdities,  destroys  an  essen  lion  which,  for  these    and    many  other  reasons,  is 

tial  part  of  the  power  of  war  and   peace  entrtisied  itiadmissil>le." 

to  Congress,  and  would  disable  the  Congress  of  the  Quoted    in    the    case   of  Penhallow  r*.  Doane's, 

United  Slates,  from   giving  satisfaction   to  foreign  Administrator,  3  Dall.   R.,  S3. 


4 


ARGUMENT  OF  MR.  PETIGRU. 


Mr.  Petigru  opened  his  argument  by  stating  that 
the  demurer  would  be  sustained  by  him  upon  two 
grounds: 

First.  The  Writ  of  Garnishment,  as  it  is  called,  is 
illegal  and  unwarranted.  Secondly,  That  the  pur- 
pose of  the  Writ,  which  is  the  conliscation  of 
enemies  debts,  is  not  within  the  competency  of  the 
Confederate  Government. 

No  man  has  the  right  to    put  a  freeman  upon  his 
oath, — to  purge    bis  conscience,   by    compelling  t 
solemn  appeal    to  Heaven    but    according  to    law 
and  the  law  gives  that  authority  only  in  a  judicia 
proceeding  to  testily  as  a  witness  ;  to  answ^er  to  mat- 
ters charged  against  him;  to  obey  the  call  of  the  Sov- 
ereign by  taking  the  oath  of  allegiance,  or  the  oath 
of  office.    The  oath  of  office,  the  oath  o(  allegiance, 
the  obligation  of  testifying  to  the  truth  in  a  Court  of 
Justice  between  parties  litigant  are  acknowledged. 
We    were    never    ianious    lor  opposition    to   au- 
thority.    No    person  was   more  ready   to  render  to 
Caesar  all   that    Caa.-ar    had    a   decent    pretext    toj 
demand.       But     obedience    to    this    Writ    which 
requires     a     general     discovery     of    alien    ene-| 
mies,  and     all    the   information    in    the   power   of 
the  party  summoned  for  the  purpose  of  discovering! 
what  property  of  alien  enemies   may   be  come  at,  I 
deny   and    refuse  to   answer.     And    the  reason  of 
this  refusal  is  simple,  although  it  seems  to  surprise 
some,  but   as    St.   Paul   says,  I    was  born  free  and 
will  not  forfeit  that   freedom    which    I  inherit  from 
my  free  mother.    I  will  not  submit  to  be  command- 
■ed  where  there  is  no  right  to  command. 

The  Clerk  of  the  District  Court  of  the  Confede- 
rate States  has  issued  a  Writ  commanding  the 
person  to  whom  it  is  addressed  to  apjiear  in  Court 
and  answer  all  such  questions  as  shall  be  put  to 
him  respecting  alien  enemies.  He  that  does  not 
uherish  the  rights  of  a  freenian  is  unworthy  of  his 
birthright. 

It  is  not  a  circular  calling  on  the  party  to  come 
forward  with  money  and  information,  nor  an  ad- 
vertisement ottering  a  reward  for  di>covery,  but  it 
is  a  command,  an  order  from  a  superior  bidding  the 
subject  to  do  what  is  mentioned.  It  pre-supposes 
or  takes  for  granted  tliat  the  superior  from  whom 
it  emanates  has  authority  to  compel  the  parly  to 
disclose  all  the  information  in  his  power,  at  least, 
on  a  given  subject.  That  subject  is  the  conliscation 
of  enemies  goods.  To  conliscate  the  property  of 
•enemies  may  be  a  rightiul  branch  of  sovereign 
power.  While  upon  this  point  the  question  is  not 
whether  the  law  of  Nations  allows  or  favors  conlis- 
cation. Nations  have  set  the  example  of  the  prac- 
tice, and  rulers  that  have  been  willing  to  adopt  it, 
have  never  wanted  delators  and  traitors,  spies 
and  informers,  to  turn  the  grindstone  for  sharpening 
the  axe  of  power.  In  discussing  this  point  we 
leave  undisturbed  the  complacency  of  them  who 
look  with  favoT  upon  the  scenes  of  confiscation 
which  have  grieved  and  disgus^ted  the  wisest  and 
best  of  men.  Let  them  enjoy  their  opinion. 
But  the  subject  declines  obedience  to  this  order. 
He  acknowledges  that  it  comes  from  a  high  power, 


and  the  only  reason  why  he  disobeys  is  that  he  is  a 
free  man,  and  has  the  same  right  to  withstand  an 
inquisitorial  examination  that  the  poor  man  has  to 
close  the  door  of  his  humble  shed  against  the  foot 
of  power. 

In  the  first  place  it  will  hardly  be  denied  that  the 
Government  of  the  Confederacy  is  a  Government 
of  special  and  limited  powers.  Under  the  United 
States  Sovereignty  was  the  root  of  bitterness. 
Federalsits,  (and  any  one  who  thinks  it  will  help 
his  argument  may  say  that  I  was  one)  contended 
■  that  the  Federal  and  State  Governments  were 
Ico-ordinate  authorities,  and  that  they  were  both 
[sovereign  in  their  respective  spheres.  Perhaps 
jthey  were  wrong;  perhaps  there  is  an  incom^ 
ipatibility    in    nature    as    there    seems    to     be    in 

guage,  between  ideas  of  sovereignty  and 
disability — that  the  idea  of  a  partial  sovereignty  is 
a  solecism.  But  that  difficulty,  so  far  as  we  are 
concerned,  is  set  at  rest  by  the  Constitution  of  the 
Confederate  States,  which  positively,  plainly  and 
without  equivocation  excludes  any  encroachment 
on  the  full  and  entire  sovereignty  of  the  several 
Stales.  Therefore,  what  was  once  doubtful  is  now 
clear.  Dr.  Cooper's  argument  has  triumphed:  his 
vis-sions  are  realized.  We  have  a  Constitution 
which  is  free  from  ambiguity,  and  a  government 
which  is  a  mere  agency  ;  and  shame  must  be  the 
portion  of  him  that  would  deny  that  the  Confeder- 
ate Government  is  confined  to  the  powers  express- 
ly delegated,  and  that  beyond  those  limits  its  acts 
(ire  unwarranted.  (See  Cooper's  Exposition  of 
Nullification.  1  Stat,  of  South  Carolina,  218,  221.) 

Now,  if  this  was  a  question  between  man  and 
man — if  a  neighbor  came  to  ask  such  a  question 
on  the  part  and  behalf  of  another  person,  one  would 
naturally  expect  that  he  had  express  directions  to 
interrogate  on  the  subject,  or  some  subject  leading 
to  it. 

We  would  expect  here,  if  the  Confederate  States 
send  such  a  demand,  to  find  that  their  principals — 
(hose  for  whom  they  assumeto  act — had  authorized 
them  to  examine  all  men  upon  every  subject  on 
which  they  needed  information,  or  at  least  on  thai 
particular  sul>ject.  How  would  it  answer  for  the 
party  to  produce  instead  of  a  warrant  to  purge  the 
conscience  of  the  party,  a  warrant  to  seize  enemies 
goods  ?  * 

Let  us  forego  the  rigor  of  logic;  let  us  concede 
that  the  grant  of  the  power  to  seize  enemies  goods 
will  authorize  all  that  is  incident  to  that  power. 
There  is  no  more  connection  between  the  power 
of  proceeding  against  enemies  goods,  and  purging 
the  conscience,  than  between  this  inquisitorial 
Act,  and  the  power  of  collecting  revenue,  of  levy- 
ing imposts  or  punishing  counterfeiting.  In  United 
States  vs.  Brown,  8  Cr.  110,  Ch.  J.  Marshall  rules 
that  the  power  over  captures  by  land  or  water  is 
not  incident  to  the  war  power,  but  is  a  separate 
substantive  power.  Yet  surely  the  power  to  make 
rules  for  captures  by  land  or  water,  is  more  like  an 
incident  to  the  war  power,  than  an  inquisition  into 
the  state  of  any  man's  conscience  or  knowledge  lo 


ARGUMENT  OF  HON.  JAMES  L.  PETIGRU. 


23 


the  power  of  making  rules  concerning  captures  in 
lime  of  war. 

As  to  what  is  incident  to  a  grant,  the  rule  is  well 
^lntler^tood  in  the  law — ciiicumgue  ahquis  quid coii- 
cedtt  concedere  videtur  et  id  sinequo  ipsa  cuncessio  es.se 
von  jiotuit.  Whoevergrants  a  thing  issupposed  ab- 
solutely to  gram  that  without  which  the  grant  itself 
would  be  of  no  effect.  (Brown's  Maxims,  426.)  So 
the  power  to  make  bye-laws  is  incident  to  a  corpo- 
ration. But  under  this  rule  are  comprehended  only 
things  directly  necessary. 

Legists  of  the  highest  reputation  distinguish  be-i 
tween  things  which  are  of  the  essence  of  a  grant: 
those  which  are  of  its  nature,  and  those  which  are 
accidental.  Those  which  are  of  the  essence  of  a 
contract  are  such  as  without  which  the  contract 
cannot  exist.  Those  which  are  of  its  nature  nre' 
as  if  not  expressly  excluded,  follow  the  grant  as  a 
matter  of  course.  Such  is  the  power  of  a  corpora- 
tion to  m.ike  bye-laws.  Those  which  areacciden» 
tal  are  .-iich  ns  are  not  included  in  the  grant  unless 
exprtjssly  named.     (Evans'  Pothier,  6-7. 

Debts  are  not  usually  confiscated  except  in  war; 
but  so  far  is  the  power  from  being  the  natural  con-' 
sequence  of  war,  that  it  is  most  rarely  reported  to; 
among  European  nations.  And  in  the  East,  where 
it  finds  a  congenial  soil,  it  is  practised  equally  in 
peace  and  war. 

But,  disregarding  all  pedantry  or  grammatical 
strictness,  I  will  go  to  the  very  furthest  brink  of 
conces>ion,  and  notwiih-tanding  Dr.  Cooper  admits 
that  the  Confederacy  may  exercise  as  much  con- 
structive power  as  the  United  States  could  or  ever 
did.  i 

Such  a  concession  will  not  authorize  them  to 
exercise  in  a  civil  suit,  a  procedure  unknown  to 
common  law,  and  in  derogation  of  the  rights  of  the 
subjeci.  Even  if  the  people  had  given  to  the  Con- 
federacy the  power  expressly  to  seize  the  property 
of  enemies  that  come  here  under  the  safe  guard  of 
peai-e  and  to  sequester  all  debts  due  to  our  credi- 
tors, the  agent  would  be  bound  in  exercising  that 
power  to  proceed  by  the  law  that  the  principal  is 
hound  by.  The  Confederate  Government  may  ar-' 
rest  olTenders  against  the  Acts  of  Congress:  l)ut| 
can  they  issue  a  general  warrant?  Can  thirty  alter 
the  law  of  evidence,  or  change  the  procedure  of 
the  Courts?  Nothing  can  be  more  incon>istent 
with  the  relation  of  principal  and  agent,  than  that 
the  agent  should  dircard  the  law  of  the  principal 
and  roort  to  means  in  the  execution  of  his  autho- 
rity which  are,  by  the  law  of  the  principal,  unlaw- 
ful. Let  him  sequester  debts,  out  lor  God's  sake 
let  him  kce|)  his  hand  from  (reneral  Warrant  and 
the  machinery  of  ihe  Star  Chamber.  ' 

All  Courts  must  follow  the  established  course  of 
jirocedure.  If  it  be  a  common  Law  Court,  the 
procedure  of  the  common  law;  it  it  be  the  EccleM- 
tical  Court,  the  Canon  law;  if  a  Prize  Conn,  the 
course  of  the  civil  law  incorporated  wiMi  the 
practice  of  those  Courts.  (Bacon's  Ab.  BuUer,  N. 
P.,  219.) 

Now    ii    this  a   common    law    proceeding  or    a 

proceeding   in   the    Prize    Court?     Is    it    civil    or 

criminal    proceeding?     Is   it    an    ini-ident,  a  thing 

without  which    the  judicial  vigor  of  common  law,! 

criminal  law  or  prize  law  will  be  impaired?  ' 

The   most    inveteraie   dispute  on    the  subject  of 

consiruciive  pnwers  was    the  incorporation  of  the 

Bank    of  the    Uniied   States.     It  was  defended  on 

•^  the  ground  that  all  civilized  people  of  the  present. 

"  age  have    a  Government    to    aid  in    the  collection, 

disbursement  and  sale  keeping  of  the  revenue.     It 


was  argued  that  it  was  incidental  to  the  power  of 
raising  and  disbursing  rev«Miue,  because  it  was 
usual,  and  without  it  the  thing  could  not  be  done 
as  well.  That  the  creation  ot  a  corporaiion  was 
an  ordinary  exercise  of  legislative  power  in  aid  of 
some  public  purpose.  That  it  was  not  a  substan- 
tive but  an  adjective  branch  of  legislation,  and  was 
therefore  capable  of  fairly  coming  within  the  de- 
finition of  a  law  necessary  and  proper  to  the 
due  discharge  of  the  duty  and  power  of  the  Gov- 
ernment. 

What  shall  be  said  of  the  monstrous  fallacy  of 
making  this  a  precedent  for  establishing  a  Court  of 
Star  Chamber  as  incident  to  captures  on  land. 

But  I  deny  that  this  is  a  jud.cial  proceeding  at  all. 
A  Writ  of  (jrarnishment  is  a  term  unknown  to  our 
law,  and  the  thing  before  us  is  not  a  Writ. 

What  IS  a  Writ?  It  is  the  first  step  in  a  suit. 
And  what  is  a  suit?  It  is  a  proceeding  between 
plaintifl'  and  defendant,  (3  Bl.,  272.)  If  a  Writ  is 
litigated  between  parties  in  a  Court  of  Justice  the 
proceeding  by  which  the  decision  is  sought  is  a 
suit,  pr.  IVlarshall.  Weston  vs.  The  City  Council^ 
2  Peters,  461 

i  Here  there  is  no  plaintiff  and  no  defendant;  it  is 
no  more  a  judicial  proceeding  than  if  the  Governor 
or  General  should  call  up  every  man  in  the  com- 
munity and  purge  his  conscience  as  to  alien  enemies. 

A  man  is  bound  to  testily  when  required  as  a 
witness,  but  he  cannot  fill  the  character  of  a  wit- 
ness unless  there  is  a  suit.  And  the  Slate  may 
require  its  citizens  to  lake  the  oath  of  allegiance, 
Which  certainly  the  Confederate  Government  can- 
not. And  there  are  oaths  of  office,  but  there  never 
was  an  oati»  like  this  since  the  days  of  the  Star 
Chamber. 

And  this  brings  the  case  within  the  Law  of 
General  Warrants.  (Wilkes' case,  1  LofIt,  1;  Money 
I's.  Leach,  3  Burr,  1762,  1  H.  H.,  580.)  Shall  it  be 
said  that  a  general  commission  to  compel  every 
man  to  give  information  is  not  a  general  warrant. 
It  is  not  only  like  a  general  warrant  but  is  the  same 
thing  in  substance,  and  there  is  just  the  difference 
ibetween  this  Writ  of  Garnishment,  a.s  it  is  called, 
jand  the  Writ  of  Foreign  Attachment,  that  there  is 
between  a  general  warrant  and  a  warrant  to  arrest 
aa  individual. 

I  Alter  this,  if  any  man  defends  this  proceeding 
let  him  give  up  all  claim  to  State  Rights,  all  pre- 
tentions to  be  a  Constitutional  Lawyer,  or  a  friend 
of  Popular  Rights. 

So  far  [  have  confined  myself  to  the  considera- 
tion of  the  inquisitorial  power  a>-sumed  by  the  Se- 
questration Act,  and  endeavored  to  show,  I  hope 
not  unsuccessfully,  that  if  ihe  Confederate  Govern- 
ment confines  iiself  bonajide  to  the  Sfjency  com- 
mitted to  it  bv  the  instrument  under  which  it  acts, 
and  under  whii-h  alone  it  can  pretend  to  any  juris- 
(Hciion  of  the  matter,  according  to  the  true  inient 
and  meaning  of  that  instruftient  it  can  have  no 
right  to  order  a  private  citizen  to  come  fiTward, 
and  act  as  an  informer,  even  if  the  information 
sought  was  conducive  to  an  object  within  its  legi- 
timate sphere  of  action. 

'     But  I   will  proceed    now    in    furtherance    oT  the 
j'arguments   of  my  friends   yesterday  addressed   to 
Ijihe  Court,  to  show  th.U    the   object   in  view  is  not 
a  legitimate  object — that  is,  that  the  object  in  view 
is  not  included  in  the  powers  delegated  to  the  Con- 
federacy   by  ihe  Sovereign    States     The  object  of 
jihe  inquiries  is  to  enable  the    Confederacy  to  con- 
tiscaie  enemies  property  found  in  the  Sinte    at  the 
Jbeginning  of  the   war,  and  brought   here  under  the 


24 


THE  SEQUESTRATION  ACT. 


sanctions  of  peace.  I  deny  tnat  the  inslrumenti 
under  which  the  Conlederacy  derive  all  their  pow- 
er authorized  them  to  confiscae  ^uch  properiv-        j 

The  holder  of  enemies  properly  has  the  right  of| 
po.<se>sioii;  and  is  entitled  to  hold  till  a  betiertitle 
is  shown.  This  is  no  more  than  the  common 
birth-right  of  a  freeman.  To  the  minister  who  as- 
sumes to  intermeddle  with  his  possession  on  be- 
half of  the  Confederate  Government,  he  has  a  right 
to  demand  not  merely  his  authority,  but  the  au 
thi)rny  of  his  master,  that  mas'er  being  as  we  have 
again  and  again  repeated  only  an  agent.  To  thi--i 
demand  the  answer  given  is  that  the  Gov-j 
ernraeiit  ha-;  the  power  to  dei-lare  war  !  That  the 
pjwer  lo  declare  war  does  not  include  the  right  of 
contis'ation  is  not  only  plain  from  re  isoii,  but  so 
fully  prt^ved  by  the  authority  ot  Brown's  case  a-*  to 
be  scarce  y  in  isted  on.  But  a  seems  to  be  >np- 
p.)Sed  that  the  power  to  conti-cate  may  be  found  in 
the  other  part  of  the  same  clause,  lo  wit  :  "Con- 
gre.-s  shall  have  power  to  make  ru'es  concerning  cap- 
tures on  land  and  water."  The  who'e  is  lakenl 
from  the  CoMSii'u  ion  of  the  United  St-Ues,  and  thel 
very  >aine  thing  is  lound  in  the  i  riicles  of  Conf  de 
ration  ofilie  year  177S,  Art.:  IX  "The  Unit.d  Siaies.. 
in  Coiigres*  a-seinl)le(l,  shall  have  the  whole  and 
exclusive  right  of  deterra  ning  on  peace  or  war.' 
(the  txception  being  immaterial  lo  the  present 
question)  '-o  e>tabli^hillg  rnles  lor  deciding  in  all 
ca^^es  w'lat  captures  on  I  uid  or  waier  >hall  be  legal 
and  in  what  manner  prizes  taken  by  land  or  naval 
tiirce-  in  the  service  of  the  Uiiiitd  States,  shiU  be 
divided  or  appropriated  "  It  would  be  mere  qnib- 
bill  g  to  say  that  ihese  two  pas-age-;  are  not  idrn- 
tical  in  sen>e  ;  and  indeed  the  Aiticle-i  of  Confede 
ration  Seem  to  be  rather  more  t'ull  and  explicit  on 
this  head  of  the  grant  of  power  than  the  Coiistiiu- 
tion.  But  neither  tne  one  nor  the  other  comes  u|) 
lo  the  puint  of  confiscation. 

A  distinction  here  must  be  made  between  tangi 
ble  property,  such  as  lands,  goods  or  movable.*,  and 
things  in  action  merely  as  debts.  Enemies  good> 
found  in  the  ceuntry  at  the  breaking  out  of  war, 
when  the  possession  is  assumed  by  an  enemy,  may 
without  any  great  stretch  of  language  be  said  to  be 
captured,  and  it  might  be  argued  with  plausibility 
that  the  clause  relating  to  captures  includes  such 
cases.  Yet  captures  more  properly  apply  to  what 
is  taken  by  an  armed  hand  in  ihe  exercise  of  open 
war — not  merely  an  acquisition  but  a  conque.<-t;  and 
the  words  o(  the  clause  will  be  fully  satisfied  if 
confined  lo  this  meaning.  And  such  was  the  con 
temporary  construction.  The  Confederation  took 
cognizance  of  whaiwas  gained  i)y  conquest  by  men 
in  arms,  but  I  hey  interfered  not  with  the  rich  estates 
ot"  the  Phillipses,  the  Robinsons,  or  other  loyalists, 
over  which  the  right  of  confiscation  was  exercised 
by  the  States.  This  construction  has  the  presuinp 
lion  ot  law  in  its  I'avor  ExpoxUio  contemporauea 
eat  fortissima  in  kge.  One  might  ju>tly  be  suspect- 
ed of  inunding  a  bitter  mockery,  if  he  afl'ected  to 
set  the  auiliority  of  people  now  in  power  over  thai 
of  the  historical  men  of  the  Revolution.  | 

The  Confederacy  did  not  exercise  this  power  and 
the  States  did.  And  how  did  they  exercise  il?l 
Not  with  blind  and  headlong  rage,  that  pavs  no 
regard  to  dignity  to  age  or  iiinocencp,  and  blends 
in  indiscriminate  ruin  men  and  women  and  chil- 
dren; but  with  a  calm  and  temperate  di^ciminalion. 
I  speak  at  least  of  Sotnh  Carolina  Her  people, 
even  in  the  heigiit  ot  civil  rage,  cmild  not  forfjet 
what  was  due  to  their  own  honor;  and  I  rejoice  t(> 
think  ihat  en  the  Jacksonborougli  Roll  the  nanif' 
of  BO  innocent  man,  no  woman,  no  child,   is  found. 


Why  need  we  fear,  then,  to  leave  this  "two-handed 
engine"  in  the  keeping  of  the  State?  Why  this 
hasie  to  commit  this  dreaded  power  lo  strange  and 
untried  hands.' 

But  whatever  may  be  said  on  the  right  of  the 
Cont'ederate  States  to  confiscate  tangible  property 
if  alien  enemies  found  in  the  State  at  the  breaking 
out  of  war,  goes  very  little  way  towards  establish- 
ing the  authority  of  confiscating  debts. 

Of  tangible  property  the  possessioQ  may  be 
divested  out  of  the  owner  by  the  conqueror.  It  is 
within  his  grasp,  and  his  right  grows  out  of  his 
power  over  it.  But  debts  have  no  locality.  By  the 
common  consent  of  mankind  debts  follow  the 
person  of  the  creditor.  Drbita  xequtnitur  jje-rsonani 
C(ri^;Yor/.?,  is  acknowledged  asa  maximevery  where. 
Thus  a  person's  a.ssignment.  whether  made  in  the 

onntry  where  the  debtor  resides,  or  on  the  other 
-ide  o(  the  world,  carries  the  property  against  all 
subsequent  liens  The  civil  powrrhas  jurisdic- 
tion over  all  persons  and  property  within  its 
territorial  limits.     But    in    a   debi  the  property  be- 

ongs  to  the  creditor  not  the  debtor.  On  the  part 
of  the  debtor  it  is  an  obligation,  a  moral  and  legal 
tie,  binding  him  lo  door  pay  something  in  particu- 
lar, noi  to  this  person  or  to  thai,  but  to  the  creditor 
himself  or  to  his  agent.  Now,  in  the  first  place, 
this  relation  between  the  creditor  and  the  debtor 
cannot  be  ''captured"  in  any  reasonable  sense.    To 

apture  a  moral  relati'in,  to  levy  upon  an  idea,  is 
simply  to  .-peak  absurdly.  The  framers  of  the 
Con?titntioiis,  both  new  and  old,  and  the  grave 
and  eminent  men  that  framed  the  Articles  of 
Conlederation,  had  perfectly  the  u-e  of  language. 
Had  they  meant  to  invest  the  power  with  the  right 
contended  for,  it  would  have  been  ea>y  to  add  to 
the  clause  concerning  captures,  the^-e  words,  "and 
to  confiscate  the  debts  of  alien  enem'es." 

But  It  was  argued  yesterday  that  the  property  of 
all  alien  enemies  belongs  to  the  State,  and  the 
Slate  takesonly  what  is  its  own  when  it  compels 
the  debtor  to  pay.  For  this  proposi'ion  the  authori- 
ty of  Lord  Hale  is  invoked.  A  venerable  name 
indeed,  on  many  accounts  entitled  to  respect;  but 
his  errors  are  no  better  than  thorje  of  another  man. 
His  work  IS  said  to  have  been  printed  from  a  foul 
draiighi,  incomplete  and  lac-king  ihe  last  hand  of  the 
author.  But  howeverthai  may  be, the  Bury  Assizes 
will  ever  remain  a  v/arning  against  pinning  one's 
faith  to  the  sleeve  of  Lord  Hale,  who  had  more 
authority  for  burning  the  poor  women  for  witches, 
than  fur  asserting  thai  enemies  goods  belong  lo  the 
King 

r  is  argued  that  an  alien  enemy  has  no  riahts, 
and  no  iiijurv  is  done  to  the  debtor  because  he  is 
discharged  from  all  duty  to  his  creditor.  Can  one 
believe  this,  and  bt- lieve  in  God  ?  Are  moral  rela- 
tions nothing  ?  Is  gratitude  a  delusion  ?  Can 
war  do  away  wiili  a  moral  relation '?  There  is  a 
moral  tie  even  when  there  is  no  legal  sanction,  and 
gratiiude  cannot  be  suppress'-d  by  any  third  party, 
either  in  peace  or  war.  In  debt  there  is  a  moral 
as  well  as  a  legal  obligation,  and  he  that  has  re- 
ceived a  deposit  or  contracted  a  debt  for  money  en- 
trusted to  him  owes  a  recompense  to  his  creditor, 
because  he  is  a  human  being,  and  this  is  a  pan  of 
the  law  of  his  nature,  which  he  can  no  more  put 
of!  ihan    he    can   change    h's  natural  constitution. 

How  idle  then  to  talk  of  the  innocency  of  confisca- 
tion as  a  thing  harrnle.-s  to  t  he  unhappy  man  that 
IS  served  wi:h  a  Writ  of  Garnishment,  as  if  he 
had  no  right  to  complain  when  he  is  compelled 
by  the  arm  of  power  to  pay  and  still  continues  in 
Gon'cience  to  owe  the  debt:  not   only   bo,    but    as 


ARGUMENT  OF  HON   JAMES  L.  PETIGRU, 


25 


my  friends  have  yesterday  abundantly  shown,  is 
still  liable  to  be  sued  in  the  Courts  of  every  coun- 
try except  those  of  the  spoliator. 

But  do  I  contend  that  the  Siate  cannot  confiscate 
debts?  By  no  means.  Unhappily  for  mankind  it  is 
too  true;  and  too  ofien  has  it  been  done  to  doubt 
the  existence  of  the  power.  But  why  can  the  State 
confiscate?  Because  the  State  is  sovereign.  The 
State  may  substitute  expediency  or  policy  for  jus- 
tice, "for  who  shall  put  a  hook  in  the  nose  of  Le- 
viathan." The  people,  in  laying  the  foundation  of 
Government,  may  put  private  rights  under  the 
guardianship  of  the  Judiciary,  by  conNtitutional 
provisions.  The  people  have  hitherto  not  thought 
it  necessary  to  restrain  the  sovereignty  of  the  Sinte 
by  any  constitutional  inhibition  against  confiscation; 
and  therefore  the  Slate  may  even  confiscate  aebts. 
But  has  the  State  of  South  Carolina  parted  with 
this  attribute  of  sovereignty?  If  so,  produce  the[ 
passage,  and  remember  that  the  language,  to  effect 
a  con^equence  so  tremendous,  must  be  clear  andj 
explicit.     The  war  power   can  make  out  anything 


by  presumption  and  analogy.  Fortunately  for  us, 
lin  ihis  instance— fortunately  for  humanity — analogy 
jand  presump'ion  are.  by  ihe  very  terms  of  the  in- 
strument which  ihe  power  produces,  excluded. 
The  Confederate  Congres*  can  only  claim  to  make 
laws  to  carry  in'o  effect  powers  exprestly  granted. 
That  the  power  in  this  case  is  not  expressly  granted 
is  a  palpable  fact.  Shall  construction  and  implica- 
lion  be  resorted  to  in  defiance  of  the  charter? — 
iKorbid  it,  Heaven!  for  if  it  is,  mankind  have  been 
ideluded  by  a  vain  hope,  and  paper  Constitutions 
are  no  more  than  a  cheat  practiced  on  the  credulity 
of  poor  suffering  human  nature. 
j  Nothing  but  a  sense  of  the  extreme  importance 
of  the  principles  at  stake  could  have  compelled 
;me,  now  that  the  visions  of  hope  have  fled,  and 
the  fire  of  youth  is  extinct,  to  venture  into  this 
arena.  I  would  that  it  had  fallen  into  hands  more 
able  to  discharge  this  duty;  but  such  as  it  is,  I 
lay  this  offering  of  age  on  the  altar  of  justice,  and 
am  done. 


ARGUMENT  OF  HON.  ISAAC  W.  HAYNE. 


I  should  be  one  of  the  last  to  question  the  right!  of  the  heart  should  prompt  to  charity.     We  should, 
of  any  man  to    make    an    issue  upon   the  constitu-   in  the  language  of  the  poet, 
tionalitv  of  a  law  pas^sed  by  a  Government  of  dele-  |  "  Be  to  her  faults  a  little  blind  ; 

gated  powers.     Not  only  is  it  the  right  of  any  man  j  Be  to  her  virtues  very  kind." 

to  make  such  a  question,  but  with  a  lawyer,  actingl  And  if  there  be  faults,  we  cannot  help  seeing — if 
in  behalf  of  a  client,  if  he  honestly  believes  that  there  be  that  which  exhibits  weakness — if  there  be 
the  law  under  which  his  client's  rights  are  thought  s'lmething  of  exposure  to  the  derision  of  the  world, 
to  be  affected  is  uneonstitutiona;,  it  is  bis  duty  to  jwhich  I  do  not  admit,  it  do-is  appear  to  me  that  a- 
rnake  the  i.-isue.  I  do  regret,  however,  that,  innGovernment  thus  circtini^tanct d  should  be  ap- 
maklng  an  i^sue  of  this  sort,  gentlemen  have  not  Iproaclied  rather  in  the  spirit  in  which  Noah's  sons 
regarded  more  than,  to  me  it  seems  ihey  haveljweni  backwards  to  cover,  with  a  garment,  their 
done,  the  very  peculiar  condition  of  affairs  prevail  jiFather's  nakedness,  [n  my  judsO'eni,  this  is  not  a 
ing  at  the  present  time.  jtime  to    indulse    in    denunciation,    invective   and 

This  Government,    whose    acts  are  thus  brought 
in'oqiiestion,is  new- — has  just  sprung  into  exif-tt-nce 


sneers  ; 
Tliis  question  must,  however,  be  decided  by  the 
It  is  as  yet    'Provisional"  merely.    Ii  is  unacknowl-jSCourt,    and  your  Honor  will  decide  upon  the  argu- 
edged  by    the    powers   of  the    world.     Thos<-  with  imeiit  a-  to  the  ConituaLionality  of  the  Law.     li   is 


■whom  we  were  lately  connected,  and  from  whom 
we  have  separated  forever,  denounce  us  as  rebels, 
and  traitors,  and  in  consequence  ol  the  attempt  th-ft 


uiaed  that  the  law  is  uncon^iitiilioiial: 

First.   Becau.-e  it  relates  to  a  subject-matter  over 
which    the    Confederate    Government  has  no  con- 


weare  making  to  manage  our  ownaffiiirs  and  exer-,  trol. 
cise  what  hitherto  hasbeen  unquestioned, at  leastinlj  Second.  Because  the  mode  of  procedure  in  re- 
America— the  right  of-elf-aovernment— h  ivewagedjgard  to  this  subject-matter  is  such,  as  that  Govern- 
war  against  us  "  Battles  have  been  (ought,  and  iheilmeiit  had  no  authority  to  prescribe 
war  is  still  in  progress.  We  are  in  the  midsi,  olj  I  admit  what  has  been  said  by  the  learned  Coun- 
war  on  the  most  gigantic  scale.  The  enemy  have:'sel  who  last  addressed  us,  and  what  lias  been  said 
the  prestige  of  the  old  Government,  with  the  pos-  by  all  who  4iave  addressed  us  upon  the  subject, 
ses.-ion  of  the  navy.  They  out  number  us.  Theirjiihat  it  is  necessary  to  show  that  a  grant  of  this 
great  leader,  Mr.  Seward,  tells  his  followers  thatilpower  is  contained  in  the  Provisional  Constitu- 
they  are  twenty  millions, and  we  but  eight,  and  how,;  lion. 

he  asks,  are  vve  to  escape  in  such  a  contest  ?||  The  grant  of  powers  to  the  present  Provisional 
There  is  no  doubt  but  that  the  odds  are  fearful  'Congress  are  (or  the  most  pf>rt  adopted  from  the 
We  are  willing  to  encounter  them  A  Government|lold  Constitution  ofihe  United  Siates. 
thus  circumstanced  mighi  claim  ■•oine  ot  that  sym-ji  The  particular  grant  referred  to  upon  this  occa- 
pnihy  which  the  learned  counsel  ihinksso  eminent  ijsion  is  in  the  identical  words  of  the  old  Constilu- 
lydueto  the  weak  as  agaiiisl  the  strong.  Yet.ition.  Now,  when  the  Congress  at  Montgomery 
instead  of  sympathy,  we  hear  only  of''usurpation,":;adopted  that  Constitution,  which  has  since  been 
"tyranny,"  "oppression,"  "injus'ire,"  ''the  Starj|ralilied  liy  the  people  of  the  several  States  compos- 
Chamber,"  "the  Inquisition,"  '■^Torquemada''  andijing  the  Confederate  States,  it  is  fair  to  infer  that 
"the  rack."  lin  adopting  the  language    of  an  instrument  which 

To  this  Government  it  is  that  we  must  all  lookijhad  for  a  long  time  been  the  Charter  of  the  Govern- 
for  protection,  whether  it  came  into  being  by  ournmeiit  which  up  to  that  time  had  been  our  own  Gov- 
will  or  otherwise.  It  is  this  Government  alone  ernmeiit,  the  words  of  that  instrument  (where  they 
by  which  anything  that  is  valuable  can  be  secured  were  unchanged)  were  intended  to  be  understood 
to  those  liviiig  in  ihe  Confederate  Slates.  ijas  they  alway*  had  been  heretofore.      Where  there 

As  tothe  learned  Counsel  himself,  his  own  liberty!  had  l)een   controversy — where  party   hail   been  ar- 


and  prosperity,  perhaps  his  very  existence,  depend 
upon  the  power  and  the  strength,  and  the  wisdom 
■with  which  this  Government  conducts  itself.  That 
power  and  strength  must  in  a  great  degree  depend 
upon  the  confidence  of  the  people,  who  are  the  sup 
porters  of  the  Government,  and  without  which 
.-support,  no  Government,  under  institutions  like 
ours,  and,  perhaps,  in  this  age  of  the  world,  no 
Governmet>t  anywhere,  can  be  strong. 

I  regret  then,  that  in  approaching  the  question  of 
the  constitutionality  of  the  law,  it  has  not  been 
done  in  that  forbearing  spirit  which,  as  I  conceive, 
■was  appropriate  to  the  occasion. 

I  had  hoped  rather  to  see  manifested  a  disposi- 
tion to  hold  up  the  hands  of  the  Government,  as 
the  Israelites  did  their  Prophet,  when  praying  for 
their  deliverance.    Instinct  and  the  natural  leelings 


rayed  against  party,  in  reference  to  the  construc- 
tion of  particular  grants  of  powers, — (or  the  most 
part  some  change  of  expression  was  introduced 
into  the  Constitution  adopted  at  Montgomery,  by 
which  the  interpretation  intended  by  the  framers 
of  the  nevi'  Constitution  was  made  plain, 

It  may  be  that  some  cl.\uses  of  the  Constitution 
remain  iinchanjied,  about  which  there  had  been 
a  dilFereiice  of  opinion,  and  in  regard  to  the-«e  we 
iire  still  left  soiuewhat  in  doubt  as  to  what  should 
be  the  construction. 

But  in  reference  to  the  particular  grant  of  power 
here  relerred  to,  there  had  never  been  dispute, 
there  never  had  been  controversy.  The  grant  had 
niidt  rgone  investigntion,  and  a  construction  had 
been  given  by  the  higiiest  judicial  tribunal  of  the 
old   Government,  a    Couri    which    was   than  our 


ARC4UxMENT  OF  HON.  I.  W.  HAYNE,  ATT'Y  GEN'L,  S.  C.        27 


Courl;  and  (he  law  thus  laid  down  in  the  highest 
tribunal  had  not,  at  the  tiiue,  or  at  any  time  since, 
been  qtie^lioned.  With  this  inierpreiaiion  g.ven 
by  the  Courts  oi  the  country,  reraniuiufj  undi.-piit- 
ed  and  uncomroveried,  in  a  leading  ca^e,  ceriainly 
wiilnn  the  knowledge  of  ihe  meniliers  ol  Congre^s 
ai  Mouijroinf-ry,  who  put  (orth  thai  Provi-ioniil 
Consiiiut'on,  I  ask  whetiicr  that  grant  should  not 
be  con.-idered  as  containing  all  that  it  had  been 
supposed  to  contain  when  tne  law  was  thus  ex- 
pounded? I  do  not  mean  lo  say  thai  the  ojiinion  ol 
ihe  Court,  as  smh,  i<  binding,  bui  it  cert. .inly  aid> 
u.H  in  arriving' at  a  just  eoiielusion  as  to  the  iiilen- 
tion  ol  the  (rainers  of  the  new  insirument.  So  lar, 
ihen.  a-*  the  su' ject-maiier  is  concerned — >o  far  as 
the  objecii'Mi  to  the  I'onstiiuli  >iiaiiiy  ol  this  law  is 
bus-  d  upon  the  subjeci  nia  tor  over  which  tl'C 
Provi-ional  Congress  ai  Richmond  has  taken  con 
irol,  if  this  view  is  wjrn  ct.  the  question  is  setiled 
for  that  Mil  jeci-niaiVer  the  Supreme  Court  of  ihe 
United  Siiites  had  devlaiedio  be  within  the  j)owe( 
of  Congress. 

Ill  the  case  which  has  been  so  often  referred  lo 
— t  became  of  tiie  "United  Slates  against  Brown" — 
so  Car  as  that  iiriiter  was  concerned,  ihe  Court  wa« 
undivided.  They  were  unanimous  in  the  opinion 
liiat,  umler  this  very  grant  of  power  now  rel'crred 
to,  the  Congress  of  the  United  Slates  had  power 
over  this  very  suf'jeel-niatier;  s-nd  with  thi<  thing 
in  the  knowledge  of  those  who  gave  Us  the  new 
Constitution  —  wiih  the  knowledge  that  there  had 
been  sufh  an  expo  ition  if  the  law  given  from 
such  a  quarter — with  the  knowledge  that  it  had 
never  been  disputed  or  questioned,  bui  tliougl. 
M'ell  known  had  been  universally  acijuiesced  in  up 
to  the  adoption  of  that  Constiluiion, — can  any  man 
come  to  any  other  conclusion  than  thai  the  Con- 
gre.is  intended,  when  they  gave  that  grant  ol 
power,  that  ii  should  be  a  grant  as  comprehensive 
as  it  had   been  declared  by  the  Court.  | 

It  has  been  said  by  the  learned  Counsel  that  new^ 
rules  o(  iiiierpretaiion  inusi  now  arise,  in  refer- 
ence to  the  Constitution  adopted  undf*r  circuin  , 
Biaiicfs  attending  the  formation  of  the  Provi-ional 
Government.  And  much  ihat  raishi  have  been 
considered  as  aiding  lo  consirue  the  Con-litution 
of  the  United  Siaies,  when  the  coiisiriu-iioii  was 
f iriiierly  given,  is,  by  the  adoption  ol  slricl  Slates 
Richts  views,  to  be  excluded  at  this  time;  and  that, 
on  that  account,  ihe  construction  given  by  the 
Couri  at  that  lime,  diflers  from  the  construction 
which  should  be  given  at  this  time. 

Bui  if  Congress  did  not  mean  lo  give  this  power, 
with  ihe  knowledge  that  there  had  been  such  a 
consirjction  given,  and  always  acquiesced  in, — il 
Congress,  I  say,  intended  lO  limit  or  enlarge  the 
power,  or  change  it  in  any  respect, — il  surely 
would  have  liecn  their  duty  to  make  some  change 
in  the  expression  of  the  grant,  which  would  make 
clear  liie  purpDscs  which  iht-y  intended.  Jealousy 
as  10  Slates  Rights  would  have  dictated  such  a 
coiirse. 

Two  at  least  of  the  Judges  who  sat  in  the  case 
of  ihe  Uniied  States  i-.v.  Brown  are  authority  in 
thems»*lves,  which  will  hardly  be  questioned  bv  the 
learned  Conn-tl.  I  mean,  of  course.  Chief  Justice 
Mar. hull  and  Judge  Siory. 

Th'-  |io  A  er  conicnded  for  is  notoulv  considered  as 
eiven  by  hoih  ofihise  li  arned  jurist*,  but  Chief  Jus- 
lice  Marshall  p  ac-s  ihnt  power,  not  upon  any  con- 
strue; ion;  not  up  n  a'ly  implication  whatsoever,  but 
he  conceives  ihat  ihne  was  an  ^•.r/ir^.v.v  and  spfC'ff 
graiiioftheidr.titicnljiowerlothc-  Cuiigressufthe  Uiii 
tid  States.     He  pUces  it  upon  what  was  commented 


upon  by  the  learned  Counsel,  the  right  "to  make 
ru'es  in  relert-nce  to  ciptures  by  land  and  water." 
The  learned  Counsel  says  that  tapiures  apply  only 
lo  those  things  outsi'Je  the  territory.  Why  ? 
Chi'  f  Justice  Marshall  says  the  contraiy  He  sees 
nothing  in  tiie  term  w  hicli  would  give  it  a  Iimiied 
M.nilication,  and  ihiiik-ii  may  and  does  apply  to 
tilings  wiihin  ihe  territory  as  well  as  ihings  be\ond. 
The  very  Counsel  himself,  in  his  subscquen'.  re- 
marks, admitted  th'it,  under  some  circumstances, 
this  might  be  Ihe  cuse.  I  presume  thai  with  an 
invading  arm>  in  our  land,  whatever  of  a  tangible 
a.iiurewas  lal<en  from  them,  the  Counsel  would 
cc'iainly  conside-r  subject  to  capture. 

Il  is  unnecessary,  then,  that  the  property  should 
be  without  the  territory.  Bv  this  admission  such 
pr  .perty  inoi/,  in  certain  circumstances,  become 
subject  lo  capture  within  tlu  territory  Who  shall 
say  what  are  the  circumstances  under  which 
property  shall  bciome  subject  to  capture?  This 
grant  ."oys  lh.il  Cmigress  shall  prescribe  rules  upon 
thai  subject  It  is  lor  Congress  to  say  what  shall 
lie  subject  lo  capture.  It  is  for  Co?igress  to  pre- 
s.  ribe  the  rules  io  reference  to  that  particular 
siibjecNinaUer. 

The  learned  Counsel  says,  however,  that  even 
though  tangible  property  were  the  subject  of  cap- 
ture, that  even  liiooi^h  there  be  authority  in  the 
Ci.nlederaie  Govcrumenl  to  le  islate  in  the  maiter, 
as  far  as  tanglbe  property  is  concern- d,  he  denies 
ui  erly  and  cniirely  ihnt  the  Congress  of  the  Con- 
lederate  Slates  have  any  power  to  legislate  in 
rei'ard  to  the  seizure  of  debts. 

The  eminent  Counsel  has  a  way  of  putting  things, 
that  by  his  forcible  manner  of  express  on  appei^r 
fiequenlly  lo  have  much  ol  substance  in  them,  but 
which,  when  you  lose  sight  of  the  honorable  gentle- 
man himselt,  and  cease  to  hear  his  voice,  vanish 
inio  thin  air.  So  it  is  here.  He  says,  how  can  you 
capture  "an  idea,"  "a  moral  relation,"  that  dfbts  are 
essentially  tntajigible,  and  cannot  be  seized  or  made 
the  subject  of  C(7//r«re.  Now,  the  word  'Kieizure'^ 
;s  one  of  the  very  terms  that  presents  itself  to 
almosi  every  mind  as  the  most  aposiie  to  express 
this  very  ihing  we  now  speak  of 

In  common  parlance,  every  one  talks  of '-iefzfwg- 
dibts."  It  is  said  thai  ii  will  not  do  in  the  construc- 
tion of  a  Coiisiimtion  to  deal  in  nieiaphor  But  that 
gentleman  is  well  aware  that  most  words  have 
primary  and  secondary  meanings  A  word  used 
originally  and  primarily  in  a  literal  sense  after- 
wards becomes  much  more  common  in  its  second- 
ary and  derivative  signilicaiion.  The  secondary 
meaning  is  always,  to  a  certain  extent,  metaphori- 
cal, and  yet  that  secondary  meaning  is  the 
meaning  in  which  the  word  is  used,  perhaps  nine 
tunes  in  ten  when  it  is  uttered  or  wriiten  It  has 
been  asked  how  can  you  a|)ply  ihe  word  "■capture:^ 
o  ihis  thing  which  is  ••intatigib/e  /^' 

Let  me  ask  how  can  we  apply  the  word  attach- 
ment to  things  intangit)le?  Does  not  the  word 
'atHKh,"  as  u-ed  in  law  Writs,  as  used  in  the  Stat- 
utes, as  well  as  parlance,  apply  primarily  to  some- 
thing that  is  tangible,  as  much  as  the  word  'cap- 
ture?" In  a  Writ  asainsi  the  person,  the  Sherifl  is 
required  to  "■a/tochlha  body."  That  is  the  primary 
signiticaiion  of  the  word.  Yet  it  is  clear  thai  even 
in  statutory  law,  in  the  text  books,  and  according 
(o  the  custom  of  London,  for  many  centuries, 
itlaekme7it  has  had  a  secondary  meaning  applicable 
toiheson  ofthing  alluded  to  by  the  Counsel.  You  "a*- 
laich^*  debts  m  the  hands  of  a  debtor,  precisely  as  it  is 
pro|>oeed  to  do  in  pcoceedings  in  this  case.  Debts 
tHSiy  he  captured,  as  well  asa«afAe(/,and  areas  much 


28 


THE  SEQUESTRATION  ACT. 


subject  of  capture  as  of  attachment.  Capture,  in 
my  afiprehir-nsion,  emliraces  that  branch  of  the  war 
power  direi'ted  aa-ain^t  propert,,  whether  in  the 
terrilory  or  out  of  it,  whe'her  tangible  or  intangible. 
When  ihe  people  of  ihe  States  conferred  upon  the 
Congress  of  the  P^ovi^^ional  Government,  the  pow- 
er "'to  declare  war,  to  issue  letters  of  marque  and 
reprisal,  and  lo  make  rules  in  regard  to  captures' 
upon  land  and  water,"  although  the  grant  was  con- 
lerred  upon  an  agent,  as  ihe  Government  is  properly 
termed,  it  is  nevertheless  a  sovereign  power.  The 
Provisional  Government,  it  is  true,  is  not  a  sove-, 
reign,  yet  in  regatd  to  speciiie  grants  of  soVereignj 
power,  which  have  been  con  erred  upon  that  Gov- 
ernment, it  is  vested  with  all  the  incidents,  attri-i 
butes  and  riijhts  of  sovereignty,  so  far  as  thej 
exercise  of  that  power  is  concerned.  Can  this  be' 
questioned?  [ 

1?  there  in  this  matter  a  diflerence  between  the 
States  Rights  School,  and  the  school  to  which  the 
learned  Counsel  belongs?  All  ihal  i-<  asked  by  the 
slriit  coiisiruclionists  is  that  you  ^hould  shoiv  the, 
grant.  I  am  a>suming  that  we  show  the  express 
grant  in  ihe  Constitution,  to  the  Government  of  the 
Confederate  States,  to  le^jislaie  over  this  subject 
matter.  I  assume  that  it  is  ^hown  that  this  sove- 
reign power  has  been  delegated  to  t  his  Government 
1)1  refe.ieiice  then  to  that  patver,  tt  is  sovereign,  and 
has  all  the  rights  that  appertain  to  a  Sovereign. 

Where  the  power  is  clearly  delegated  to  the 
Government  of  the  United  Slates,  in  reference  to! 
that  particu'ar  power,  unless  from  the  exaniiiiaiion 
of  the  Constitution,  generally,  (for  I  would  not  havej 
any  grant  of  power  examined  merely  in  reference 
lo  the  particular  clause  which  contains  it,)  it  should 
be  found  that  the  power  is  limited  elsewhere  ;  the 
power,  unless  thus  limited,  it  is  absolute,  as  abso- 
lute on  that  subject  a.s  the  power  of  the  Czar  oi 
K-ussia. 

Having  then,  on  this  sul>ject.  Sovereignty,  with 
all  its  attributes,  the  provisional  Governmeni 
stands  on  the  same  fooling  with  France,  Russia,  or 
Great  Britain,  m  reference  to  the  exercue  of  the 
power  granted. 

if  ihis  be  true,  what  has  the  Law  of  Nations  lo 
do  with  this  matier  ? 

I  hold  that  the  law  of  the  Confederate  Congress 
operating  upon  a  subject-matter  over  which  it  ha^ 
absolute  control,  overrides  the  liiw  of  Nations 
so  far  at  least  as  the  tribunals  of  this  country  are 
concerned. 

The  Ihw,  as  given  by  the  Legislature,  is  the  law 
for  the  Judge  who  sits,  whether  in  violation  of  the 
Law  of  Nations  or  not. 

As  was  said  bv  Judge  Chace,  that  is  a  matier  lo 
be  settled  between  the  different  nationalities  ;  that 
is  a  matter  (or  which  a  nation  is  responsible,  belbre 
the  tribunal  of  pulilic;  opinion  among  the  nations  of 
tne  earth  ;  but  her  will  is  absolute  in  her  own 
Courts. 

Every  Judge  mu*t  obey  the  written  law,  provi 
ded,  the  Legislative  power  has  the  authority  to  act 
over  the  sul)jecl. 

The  Counsel  who  addressed  you  yesterday, 
dwelt  very  much  upon  the  case  in  Munle  &  Sel 
wyn.  Lord  Ellenborough  has  been  introduced  as 
authority,  declaring  that  debts  are  not  liable  to  con- 
fiscation under  the  Law  of  Nations.  Lord  Ellen 
borough  does  say  so,  and  Lord  Ellenborough  furth 
er  decides  that,  as  an  English  Judge  he  had  the 
right  to  disregard  a  law  of  Denmark,  opposed  to 
the  Law  of  Nations.  But  does  Lord  Ellenborough 
intimate  that  if  the  same  law  had  been  passed  by 
the  British  Parliament,  he  could  have  disregarded 


that  law?  In  the  same  opinion,  Lord  Ellenborough 
refers  to  a  decision  in  France,  sus.aining  the  va- 
lidity of  a  law  confiscating  delH*,  but  he  urges  that 
this  French  case  is  not  auihority  elsewhere,  be- 
caurt  ihe  law  being  a  French  law,  a  Court  tw 
France  could  not  do  otherwise  than  sustain  it. 

The  law  making  power  acting  within  constitu- 
tional limits,  is  above  the  law-expounding  power. 
A  Legislature  within  the  limit  of  its  powers  must 
control  its  own  judiciary. 

If  Congress  has  power  to  legislate  on  ihe  sub- 
ject matter,  there  isno  such  constructive  limiiation 
as  that  her  legislation  should  conform  to  the  Law  of 
[Nations.  Lord  Ellenborough,  in  my  opinion,  had  no 
right  to  disregard  the  Danish  dei-ision,  made  in  ac- 
Icordance  with  a  Dani-h  law,  because  thai  law,  in 
[his  Lordship's  0()inion,  was  in  conflict  with  the  Law 
[of  Nations;  liutthe  very  case  cited  shows  that  Lord 
Ellenborough  would  never  have  dreamed  of  ques- 
tioning a  law  of  Parliament  on  ^e  same  ground. 

Whether  the  confiscation  of  debts  is  in  conflict 
with  the  Law  of  Nations,  isinthis  view  immaterial, 
md  the  subjein  having  been  so  fully  considered  by 
the  District  Attorney,  1  shall  waive  its  discussion, 
on  my  part,  and  rely  on  his  argument  and  the  au- 
thorities he  has  cited. 

For  myself  I  insist  that  if  the  Provisional  Con- 
gress had  the  right  to  legislaie  at  all  on  the  subject- 
matter,  whether  wise  or  foolish,  humane  or  bar- 
barous, the  law,  so  far  as  its  object  is  concerned, 
is  binding  upon  your  Honor. 

The  next  question  I  will  proceed  lo  con  ider,  is 
the  mode  prescribed  for  carrying  into  efi'ecl  this 
aw,  which  otherwise  would  be  constitutional.  Is 
there  anything  in  the  mode  prescribed  which  ren- 
ders the  Act  unconstitutional?  In  starting  out 
upon  this  inquiry,  we  have  supposed  that  the  right 
to  confiscate  on  the  part  of  the  Provisional  Gov- 
ernment is  established.  The  exercise  of  that  right 
upon  the  part  of  the  Provisional  Government 
proves  that  in  the  opinion  of  ihe  Legislalure,  it  is 
for  the  public  good  that  this  confiscalion  should  be 
consummated.  Now,  in  a  legal  point  of  view,  ihe 
right  lo  confiscate  being  established,  and  it  being 
further  established  that  confiscation  is  nevessary 
tor  the  public  good — that  is,  that  the  public  well'are 
and  safely  requires  that  it  should  be  consummaied, 
surely  it  is  not  "unusual"  or  "unheard  of"  to  re- 
quire that  good  citizens  .should  give  their  aid  in  the 
executio7i  of  that  lawl  I  would  say,  furlher,  that 
in  prin  i|>le,  it  is  no!  "unusual  or  unheard  ot"  ihdt 
citizens  or  subjects  should  be  bound  to  give  infor- 
mation to  the  public  authorities  of  any  atlemjit  lo 
evade  that  law.  When  the  learned  Counsel  de- 
nounces with  such  strong  invective,  this  law 
which  first  prescribes  a  duly,  that  the  property  of 
alien  enemies  within  the  Confederate  Statesshould 
be  disclosed,  and  next  imposes  a  penalty  upon 
those  who,  under  some  circumstances,  neglect  to 
make  this  disclosure — when  he  denounces  this  as 
unheard  of,"  does  he  Ibrget  the  common  law 
oWencs  o(  miiiprison  of  trecihon.  iK\\\i:h  has  existed 
in  England  time  out  of  mind;  which  has  never 
been  questioned  as  a  law  binding  upon  ihe  Judges. 
It  has  never  been  attempted  in  a  Court  of  Jusiit'^e 
to  set  aside  this  law  upon  ihe  ground  that  it  con-  ' 
fiicled  with  the  consciences  of  men,  or  with 
'common  right."  What  is  "misprison  of  treason  ?'' 
It  is  detii'ed  lobe  "weo'^ect"— neglect  is  the  very 
word  used.  It  is  "neglect  lo  disclose  any  and  all  i 
acts  of  treason  within  one's  knowledge." 

When  treason  has  been  committed,  every  one 
.■«  bound  to  make  known  lo  the  public  authorities 
all  that  he  has  learned,  Itl  it  affect  whom  it  may,  or  • 


ARGUMENT  OF  HON.  I.  W.  HAYNE,  ATT'Y  GEN'L,  S.  C. 


29 


hRve    been  derived  irorn  never    so    confidential    a' liffand  B  the  defendanl,  as  to  answer  thequestions 
source,  or  he  becomes  himself  a    criminal.  !  now  objected  lo.      Testimony  in  ordinary  judicial 

This  is  not  simply  in  reference  to  treason,  hul  it  ca?es,  may  be  the  me.  ns  of  laking:  life — the  means 
is  the  law  in  relerence  lo  felony.  It  is  the  duty  oi  oftakinsr  a  friend's  property;  may  be  the  means  of 
the  citizen  or  subject  to  disclose  every  felony. i  committing  the  greatest  possible  injury.  Yet  anv 
every  murder,  robbery,  or  larceny,  und  veglect  ^o  man  is  subject  to  be  called  upon  to  testify,  when 
disclose  is  a  crime.     All  this  has  beenlaw  from  lime  the  country  demands. 

immemorial — it  is  the  boa.stf.d  '■'■Commoii  Law."  This  proceeding  then,  is  not  unusual  or  unheard 

In  point  of  principle  where  do  the  two  cases  of,  in  so  far  as  it  operntes  in  compelling  an  indi- 
difler?  The  gentleman  thinks  thai  contiscaiion  i-  viduai  to  disclose  knowledge  communicated  to  him, 
not  /or  the  public  good.  But  Conuress,  to  whom  however  confidential,  and  whatever  may  have 
our  interests  have  been  committed,  thinks  that  it  is.  been  the  relaiionM  of  the  parties.  But  suppose  the 
They  think  thai  it  is  essential  lo  the  public — thni  procedure  altogether  new.  Has  not  the  lawmak- 
it  is  a  mailer  ol  great  and  vital  impor'ancc,  and  ing  power  the  right  to  change  the  mode  of  pi-oced- 
claini,  in  the  execution  of  that  law,  that  the  Gov  ,ire  in  its  Conns.'  Novelty  alone  does  not  consti- 
ernment  should  have  the  aid  of  all  its  citiztn-  iiile  unconstitiiiionality.  This  process  has  been 
It  is  made  a  penal  oHence  on  ihe  pan  of  those  wlio  likened  to  a  general  warrant,  and  this  is  urged 
'Vi,e^/frf"' lo  give  that  aid.  and  the  Act  presi-ribf-  when  we  are  considering  the  coiistitutiovality  o( 
whai  shall  be  the  punishment  for  such  -'negle.-i."  (he  law.  We  are  told  what  Lord  Camden  said 
It  is  s^id  that  things  like  each  oihcr  are  iioi  upon  this  subject  in  England.  I  imagine  if  there 
always  the  same.  But  we  mu:i'.  reason  from  anal  had  been  an  Act  of  Parliament  produced  to  Lord 
ogy,  and  from  varying  circumstances  endeavor  lo  Camden,  by  which  the  British  Parliament  had 
extract  the  princip/e,  and  if  the  principle  be  alike  expressly  authorized  such  warrant'*,  Lord  Camden 
in  the  mattrr  ni  which  tot  are.  comparuig  twothmg-.  could  not  have  questioned  their  legality.  What- 
thrn  the  argument  is  a  fair  and  jii-t  one.  Now.  in  ever  might  have  been  said  in  reference  to  the  ordi- 
pmiciple,  1)1  the  yoint  of  view  in  which  we  flri'  nary  procedure  of  the  Court,  the  reply  would  have 
considering  this  thi"g,  howdothe  two  cases  dirt"er?i  been,  "here  is  a  law  enacted  by  competent  nnthori- 
It  is  simply  a  requirement  on  the  part  of  the  Gov-|j<y,"  and  Lord  Camden  could  not  have  disputed 
ernment,  that  the  citizen  who  knows  a  violation  ot   the  mandate  of  iha'  law. 

law,— a  law  important  lo  the  public  wellare.—  But  a  general  warrant  i«  certainly  a  very  differ- 
should  make  a  disclosure,  which  will  enable  ih^jeni  thing  Irom  a  procedure  of  this  sort.  A  general 
Government  to  execute  that  law.  In  boih  ca»es  warrant  charges  with  crime,  and  begins  by  deprir- 
Ihe  iaw  is  general,  and  applies  to  all,  and  thoeing  the  citizen  or  subject  o(  his  liberty.  This  Writ 
who  neglect  to  pel  farm  the  duly  are  to  be  punish-  simply  calls  upon  him  to  answer  questions,  to  give 
ed  for  such  neelect.  inlormation.     This  mav  be  inconvenient.     So  it   is 

It  is  said  thai  to  require  the  citizen  to  inform  is  when  you  call  upon  a  witness  to  testify.  It  is 
entirely  "unheard  o(,"  and  that  this  law  is,  most  of'icertainly  a  very  inconvenient  thing  to  require  one 
all,  an  interference  with  the  liberty  of  the  citizen,  to  give  up  his  freedom  of  locomotion,  to  be  at  a 
because  it  imposes  upon  him  the  duty  ol  becoming  place  wliere  he  does  not  desire  to  be.  It  is  a 
an  informer  befure  a  case  is  made.  Is  it  not  ilie  matter  of  personal  inconvenience,  but  still  he  is 
same  thing  to  apply  the  law   in  cases  of  mi.-pri-on   bound  to  answer. 

of  treason  and  misprison  of  felony,  which,  in  like  There  Ir  no  rule  in  ordinary  procedures  which 
manner,  impose  upon  every  one  the  duly  ol  "'jrequires  it  to  be  shown- beforehand,  that  a  wiiness' 
forming  on  every  OHie,  whatever  the  relcition,  iuid  le^timony  is  requisite  and  material  to  ihe  issue 
m  whatevermannenheinlormation  may  have  been  Jx^e  ordinary  Writ  of  Subp.ena  may  is-ue  against 
acquired?  The  jaw  makes  it  the  duty  o(  ever\  ^^y  ,n^„  3^^,^.,  ^  „„mber  of  men,  and  each  may 
onehavingsuch  information  to  become  an  inA>rmer,:be  put  to  inconvenience,  without  cause  shown  bv 
before  pro.-ecution  or  suit  is  brought.  But  qne^  'ijjose  who  call  him. 
tioHS  thus  propounded,  it  is  said,  are ''uniieard  ol.'"       ~.         ,  ',.  ,       ,, 

Cases  of  a  Bill  of  Ui>coverv  in  Chancerv,  Wriis  ,.  J^a;  this  proceeding  ..hould  in  some  respeds, 
of  Garnishment  under  Atiacl.meiils,and  Te.^timonv  l^'*^^""  "■*""  ""  o'-'^'-'^y  proceeding  ot  the  Court,  is 
inCoun,  have  been  referred  lo  as  aflording  an  j""^  '"o^'  ""l""'  /hing  in  thewo.ld.  Modes  of 
illust.alion  in  reference  to  this  matter,  and  ihe.s;,  it  Procedure  must  always  be  adapted  to  ihe  ends  to 
is  argued,  have  no  application.     The  points  of  view  ''V'"''''"'''  "   seneral,    the    procedure   ha. 

in  which  these  analogies  were  introduced  wee  reference  to  a  panicular  su-jeci.  Ordinary  cases 
these:  It  was  most  eioq.ienily  contended  by  the  '"  ,^°."/t^"'^^  ^"^1"'^  *"•«:  made  up  of  i.^s.ies  between 
Coun.^el  who  addressed  the  Court  yesierc^iy  [Mr.  '"'''^"'"«'  citizens,  and  in  the  isMicsihua  ma.!e  up 
Mitchell]  that  a  breach  of  confidence  was  required  at  1"^*'.''"°"^  '^  ^"■''"  '"  "'^'^^ '"''"'^e  '"  ^''''^  maUers. 
the  hands  of  him  to  whom  the>e  quesiions  were!  But  war  is,  necessarily,  ol  a  general  nuiire.  War 
addre-sed;  that  one  misrhl  thus  be  required  loj  deals  in  ihe  general,  and  it  applies  to  an  individual 
injure  his  nearest  and  dearest  friend;  that  ho  inghl  ''n'y  as  he  constinites  a  pan  oTlhe  general.  When 
be  thus  called  upon  to  violate,  not  only  friend>liip-,  l^e  individual  .-ohiier  is  shot  down  in  battle,  the 
but  the  sacred  relations  ot  confidence.'     When  that  *hot  is  not  direcicd  speciaMy    at    him.    but    it  is  in- 


objeclion  IS  made,  is  it  not  an  answer  lo  say 
Ihat  the  every  day  course  ol  jiistire  is  such  iliai  a: 
iriend  may  be  called  upon  to  tesiify  against  a 
friend— to  answer  a  Bill  of  Discovery  or  a  Writ  of 
Garnl^halelll  against   «    friend— thai   men   may 


tended  to  destroy  the  army  of  which  he  happens  lo 
be  a  part. 

In  this  matitT  ol  confiscation,  under  conside- 
raiion,  it  is  directed  not  to  the  appropriation  o(  the 
properly  of  A,  B  or  C  ;  the  individual  s  property  is 


•ailed  upon  lo  testify  in    any  of  ihtse  ways,  iinderj  sought  only  because  it    diminishes  the   strengih  of 


circumslani'cs  invnlmng  quite  as  much  of  violatioii 
of  confidence,  and  of  relations  of  friendship,  as  in 
cases  arisintj  under  this  Act. 

It  is  surtly  just  as  much  a  violation  ofconfidence 
to  testily  in  a  particular  ca-se  where  A  is  the  plain- 


the  enemy.  It  is  to  destroy  a  part  of  what  contrib- 
utes to  the  sinews  of  war,  on  the  part  of  the  enemy; 
and  a  procedure  in  reference  to  this  must  necessa- 
rily bf  general  in  its  nature.  The  object  is  to  get 
at  any  and  all  properly  belonging  to  alien  enemies, 


30 


THE  SEQUESTRATION  ACT. 


upon    which  hands   can    lie    laid,    with  a  view  to'jiaw  recently  g'ven  by  Mr.  Secretary   Chase,  is   to 
Weaken  the  power  of  ihe  enemy.  jjbi'  acted  upon  liy  the  North     ii    introduces  a  very 

While  Hppiyiiig  the  proce*  ding  lo  a  fuhject  mat-  Idiflereiit  .-tate  ot  ihinas  f'lOni  that  hilh.'irio  existing 
ter  ot'tNis  Uin.'l  wah  an  eml  like  ihi-  in  vir  w,'!ihere.  The  confisiMticn  law  w  h  ch  has,  lor  some 
whrre  IS  that  gros»  departure  contended  f 'r  by  jtime,  lieeii  in  operation  ai  the  North,  in  retaliation 
the  p-irtics  i'D  th«^  ot'ier  s  de,  iii  calling  upon  nil  to  iii-r  which  this  Aci  ol'  Sequestration  was  passed, 
answt  r  ?  You  have  ihf-  piainlifl",  the  Confedera  eicert^iinly  was  adniini-tered  in  the  beginnins,  so  as 
St.ites;  and  a'/ the  pr  >peity  o  alien  ent-niit-s,  with-  to  atiect  all  descripiions  of  piopeity  supposed  to 
in  ti'C  limit- of  the  Confeilrrnte  S  ates,  is  the  .v^jVciilbe  ihe  piO|ieriy  of  alien  enemies.  We  have  seen 
of  UtK  suit.  The  nrocf  lading  may  be  consiili-red  a>jlli-t>  ol  vesstls  in  which  Souihern  men  had  oiilv  a 
171  rem,  and  the  Co'i  edi  rair-  ^-tate-,  the  plainiifT. —  sm:ill  share,  some  actually  in  the  server  of  the 
All  tho-e  p'-rso'.is  who  a  e  snppoed  to  have  any  in  [Federal  Governm-  ni,  ihe  shares  in  whu'h  were 
f.^rmaiion  in  lelt-reiice  t'l  theiiii^gin  suii  are  lall-li.-eized — the  snialle-t  interest    of  a   Sonihrrn    man 


ed  up  )n  a-  wimes-e^  to  lesiil'y. 

1  ins  St  I  hen  tuat  this  gre  a  g  e  viance  comi'lainedl 
ol  is  imaginary.  Thr-ie  was  an  a  gumeni  very  elo  | 
quently  uigfti,  whic'i  1  have  l>ei  re  aliudfd  lo  ml 
r<  f  re iii-.e  to  tne  violation  ol  li  ieiid>h'p  ihavet-ii-l 
deavored  to  show  that  the  law  very  liequeii  ly  re-l 
quiri  s  this  at  '  he  hau'ls  o(  a  citizen,  ad  ihai  thi> 
.•an  be  n)  valid  objection.  The  pu' lie  ii.tere>t 
mu>t  tie  held  paramonnt.  The  individual's  con-| 
vtn  eiice,  iip'tert-si  and  ftel  ng  must  yield  to  ihej 
public  good.  Bui  in  relerrnce  o  <ilion  enemies,^ 
111  time  of    war,  in    ihi^    Couri   Hou-e,  there  is  n 


I'lTleited  We  have  heard  of  the  contiscat  on  of 
the  ironing  mare  Fiora  Tt-mple.  We  liave  heard 
ol  the  trunk  Ol  a  wealihv  and  well  known  fellow- 
ci'izen.  for  tweniy  years  a  re>id- nt  of  New  York, 
bei.ig  seized  and  made  the  >ul'jt  ci  of  ci'ntiscaiion. 
We  have  heard  of  dividend*  and  de|io  its  hemg 
-eized.  We  have  seen  Frement's  proi-lamalion 
that  the  nej^r  'S  oTall  in  arms  against  the  Govern- 
toient  should  be  emancipated  This  whs  th-:?  man- 
ner in  which  ihis  Act  had  besiin  to  be  executed. 
It  IS  only  .since  the  passage  vf  this  retaliatory  Act, 
thai  an  titiemin  has   been     made    to   put   upon  the 


such  thing  as  /ri.  ndship.  However  abhorrent  to  jFederal  Act  a  (tillerent  con-tructi"n.  Ifthatcon- 
ihe  sentimenis  of  i  he  g'  n  lemen  wlio  hive  address-  struci  ion  i>  in  g';od  f«iiih  carried  out,  it  is  perfectly 
ed  us,  ye.  such  i-  the  1  iw  ixsl^ul  down  everywhere,  competent  tor  Congre-s  lo  make  such  modifications 
There  is  iioi  a  liook  biougin  into  ihe  Cour.  Iloust-  iin  our  Act  asiiiay>uii  the  chaiiae  ol  circumstances. 
ui'On  this  subject,  m  which  could  not  be  lound  the' j  I  will  conclude  my  i  eniark*,  by  saying  th  it  even 
princi|)le  that  m  conteinpl  ition  ofla^v.  war  malce«;!though  ihi«  law  weVn  pronounced  lo  be  iincoastitu- 
eveiy  raa-i,  w.>nian  and  child  in  the  one  couniry,  jtional,  which  I  think  it  cenamly  never  can  be,  the 
the  eneitiy  of  every  man,  woman  and  child  in  i  iie|]impuiai  ion    which  is  attempted  to  be  thrown  upon 


o.her.    Ttiis  is  the  language  of  all  the  books.     Thi 
IS  an    incident   of  war — a    terrible    and    barbarous 
incident,  it  i>  true,  but  war  itsell  is  barbarous. 

If  the  gentlemen  could    bring    aLoui  ihr;  milleni- 
um — rould  get  rid  id'  war  altogt  ther,    certainly  the 


our  Governii.eni  in  iis  enactment  is  most  unjust. 
The  law  is  a  law  oi  retaliation  It  is  a  law  that 
was  passed  with  reluctance.  It  is  a  law  which  is 
only  intended  lo  meet  acts  that  were  done  by  the 
enemy,  and   the   very    preamble    asserts    that  it  is 


world  would  be  under  gre-a  ob  ig^tion  lo  them. i  |abhorreni  to  ihe  feelings  of  the  Govrrnmrnt  to  do 
But  while  war  dues  exist  its  incidenis  must  comeij-o  Ii  wa>  an  at-t  of  retaliali-in  inlenned  to  enable 
with  It,  and  this  is  one.  Becau  e  such  a  requisition|  it  to  make  good  their  losses  to  ihose  who  suHered 
as  is  here  made  may  cause,  an  inierference  with  jfrom  the  enemy,  and  to  check  the  continuance  of 
private  feelmg,  because  yoii  may  be  called  on  toijexactioiis  on  the  p^rt  of  the  enemy.  This  appear.* 
violate  old  tie-,  can  thai  tie  looked  upon  as  a  mifihtyijto  be  the  motive  of  the  law,  and  a  motive  like  this 
grievance,  when  ii  must  be  ailmitied  thai  the  veryl^demands  a  charitalile  construciion,  even  ii  there  be 
power    which    call-     upon    you    to    answer    thesei  lerror  in  the  Act   its>  If.     Has  it  not   already  had  its 


(jiiestions,  may  oideryoii  into  battle,  may  order: 
you  lo  aid  and  abei,  nay  to  use  your  own  utmost 
etiorts  in  destroying  the  lives  of  those  friend-,  to 
aid  and  abet  in  making  your  friends'  wives  widows 
and  in  making  tntir  children  orphans;  when  the 
Slate  has  a  right  lo  command  all  this  at  your  hand 


effect  ortthe  enemy  ?  The  main  object  of  retaliaiory 
mea-ures  is  to  put  a  slop  to  the  injurious  proces 
dure  ol  the  enemy. 

So  far  from  this  young  Government  having 
proved  itself  usurping,  tyrannical  and  regardless  of 
ihe  rights  and    feelinijs  of  those    committed  to  its 


and  you  cannot  bin  '  bey,  can  the  Stale  be  consid  icharge,  1  would  challenge  the  Counsel  to  produce 
ered  as  not  posse-sed  ot'  the  minor  right  of  asking  jfrom  the  history  of  the  world  a  single  instance  of  a 
thai  yo"  should  give  tesiimony  in  regard  lo  the  iGowernment, under  the  same  circumstances,  where 
subjei't-m-ntler,  whii-li  Ihe  authorities  ot  tlie  Siatenihere  had  been  a  violent  disrup  ion,  followed  by  so 
have    decided    t©    be    of  great    public    iuiporiance   lleariul  a  war,  which  has  evinced  such  foibe  irance, 


To  these  authorities  ihe  conirol  of  this  subject  ha 
been  commi'ted  and  lliey  believe  that  this  measure 
is  essential. 

Why  there  is  a  command — "Thou  shalt  not  kill." 
It  is  ceitainly  imperative  It  is  the  law  of  God 
and  addresses  itself  lo  every  man's  conscience. 
Yet  this  very  Government  whose  authority  is  now 
questioned,  can  command  you  "to  kill."  The 
general  law  of  Christianity  is,  "do  good  to  all," 
"avoid  inflicting    on  y.>ur   lellow-nian    misery  and 


regularity,  and  perfect  freedom  from  injustice,  ex- 
tortion, and  tyranny  in  every  shape,  as  has  been 
exhibited  by  our  young  Confederacy.  I  for  one 
am  iiroud  ol  it. 

[The  Reporter  has  received  from  Mr.  Haynk  a 
request  that  the  following  synopsis  of  the  argu- 
ment which  he  intended  to  mai^e  upon  a  single 
point,  accidenlly  omitted,  should  be  appended  lo 
ihe  report  of  his  speech.] 

Mr.  Miichell,  in  his  able  and  admirable  arguiuenl, 


pain"  Yet  in  war  the  State  commands  you  to  do;;which  was  in  all  re-pects  the  model  of  a  fine, 
all  that  you  can  to  injure  and  (le-troy.  And  shall  ^forensic  effort  on  such  an  occasion,  ingeniously, 
it  be  said  that  it  I  as  no  right  to  ask  questions  vvhich'jand  with  much  force,  urged  that,  inasmuch  as  the 
incommode  and  annoy.  I 'war  power    was  granted     under    the    Anicles   of 

But  mcral  rwihx  is  not  here  the  question  Is  the  Confederaiion,  almost  in  the  sameierms  with  those 
aw  uncoiistitntionMl?  'jiised  in  the  Constitution  of  ihe  United  Stales,  and 

It  is  very  apparent  that  if  the    exposition  of  the  li^dopted   into   the  Constitution    ot   the   Provisional 


ARGUMENT  OF  HON   I.  W.  HAYNE,   ATT'Y  GEN'L,  S.  C. 


31 


Government  of  the  Confederate  Slates,  and  the' 
Congress  of  the  Confederation,  it  is  conceded,  fore- 
bore  to  exercise  the  power  of  coiifis  -ation,  and 
recommended  the  exercise  of  that  power  to  the 
Slate  Governments,  neiiher  the  Governmentof  tht- 
United  Slates,  or  of  the  Confederate  Slates,  could 
rightfully  exercise  such  power. 

The  reply  is  this.  Every  specific  grant  of  power 
is  to  be  construed  not  merely  by  the  words  con 
tained  in  such  grant  but  is  limited,  il  not  enlarged. 
by  referring  to  the  scope  and  beiiring  of  the  insiru 
ment  in  which  the  grant  is  contained. 

A  power  granted  cannot  be  r  ghlfnily  exerci-ed 
in  regard  le  •■  suhjert-matltir,  the  conirol  of  which, 
il  is  manil«>t  from  the  scope  of  the  whole  insiru 
ment,  has  been  intentionally  wiihheld. 

Congress,  tinder  ihe  Articles  of  Confederation, 
could  not  diricily  act  ot«  the  inafter  of  confiscation, 
because  the  power  lo  act  directly  r>n  individudls. 
or  property,  iti  a  State,  hnd  been  wiiliheld.  It 
could  acl  only  ihrough  the  Siale  Governments,  and 
by  iheir  co  operation.  Even  ihe  power  of  taxatioii 
had  been  withheld  Ii  had  no  machinery  by  whicli 
its  piir|ioses  in  regard  lo  conliscation  could  be 
curried  into  efl'ecl. 

The  war-making  power  was  confided  to  this 
Congress  but  the  war-conducting  pov^er  was 
diviced,  and  rested  in  part  with  the  Congress,  and 
in  part  in  the  Slates.  M"ney,  the  sinews  of  war. 
was  lurnohed  by  the  Slates;  commissions  for  ves- 
sels of  war;  and  letters  of  marque  and  reprisa', 
were  granted  by  the  States,  after  war  was  de- 
clared. The  forces  on  (and  were  rai-ed  by  the 
Slates  and  in  ihe  >  ondcct  of  ihe  war  ihe  Govern 
mem  of  the  ContVdeiatinn  acted  only  upon  and 
through  the  StHtes.  Ati  Act  of  Coiifiscation  would 
have  been  brutnm  f'ulmen.  The  oraamsin  wa> 
such  that  Congre»»    could    not   act  directly.     It  re- 


conoinended  lo  the  Slates, by  whom  alone,  according 
to  the  then  exis'i.ig  organization,  n  could  be  exer- 
cisf-d,  that  such  a  course  should  be  adopted. 

Under  the  Consiitut'Oii  of  the  Utiited  Slates,  and 
of  th«  Confederate  Slates,  the  whole  of  ihe  war- 
conducting  as  Well  as  the  war-making-  power  is 
committed  to  the  common  Government.  •  It  raises 
the  troops,  furnishes  the  means,  and  is  charged 
with  everything,  the  States  being  prohibited  Ironi 
the  exercise  of  powers,  which,  under  the  Articles 
of  Coniederaticn,  were  absolutely  necessary  lo 
efficient  action. 

There  is  then  no  inconsistency  in  claiming  the 
erani  of  the  power  ol  C'-ntiscaiion  under  the  Con- 
-tituiion  ot  the  present  Government  while  it  is 
denied  10  have  been  coiifened  by  the  Articles  of 
I  onl-deraiioii. 

The  hi-tory  of  that  period  shows,  at  least,  ihat 
it  wa-  deemed  an  ailril>ute  of  Government,  lodged 
somewhere,  and  that  its  exercise,  in  time  of  war, 
as  a  retaliatory  measure,  was  emtnentlv  proper. 
Have  we  parted  with  the  power  by  the  adoption  of 
ihe  Consiiiiition?  If  not.  where  in  the  new  divi- 
sion of  power  under  the  Consiitiition  did  il  fill? 

I  answer,  ihat  it  is  vested  in  that  Government 
wh  ch  has  the  power  to  "decLire  war,  grant  letters 
of  mark  and  reprisal,  and  make  rules  concerning 
captures  on  land  and  waier."  which  has  the  power 
'to  raise  and  support  armies,"  "to  provide  and 
mainiain  a  navy,"  to  make  rules  fur  the  'orces,  to 
organize  the  militia,  wh'ch  i*  charj;ed  with  all  our 
lbr>-ign  relaiions.  and  which  is  fully  compfleni  in 
its  organization  to  carry  a  Confiscation  Act  into 
effect.  When  asked  for  the  specific  grant,  I  refer 
10  the  power  "lo  make  rules  coniermng  captures 
on  land  and  water,"  as  aj-pentnent  to  the  war 
;«»M'^r,  as  interpreted  by  a  reie  ence  to  the  whole 
scope  of  the  instrument  ia  which  it  is   contained. 


ARGUMENT  OF  MR.  NELSON  MITCHELL  (IN  REPLY). 


Having  presented  my  views  very  fully  al  first,  lino  exception  to  the  application  of  this  humane 
had  not  supposed  that  it  would  be  necessary  to  say|  consideration,  and  hence  it  is  that  we  should  not 
anything  further  in  reply;  but  the  strain  of  remark|  be  inmh  surprised  if  under  pre-sure  of  this  sort 
which  has  been  indulged  in  by  the  learned  counsel;  he  goes  somewhat  out  of  the  line  of  argument,  as 
in  defence  of  these  proceedings,  leaves  me  no,  properly  addressed  to  the  <;ase,  to  make  appeals 
alternaiive.  Before  adverting,  however,  to  what  which  are  calculated  to  divert  the  attention  from 
has  rendered  this  reply  necessary,  it  may  be  as' what  may  not  eiulflre  too  close  a  scrutiny.  IT  it  be 
well  to  say  a  word  on  some  of  the  positions  taken  supposed  by  the  counsel  that  in  aGovernment  like 
on  the  other  side.  It  is  insisted  that  the  Court  can,  ours  an  argument  adaressed  to  a  Court  of  Justice 
listen  to  nothing  here  in  behalf  of  the  rights  or  ;on  the  consiitutionaliiy  of  a  legislative  act,  still 
interests  of  alien  enemies.  Nothing  can  be  clearer,  more  on  the  validity  of  a  novel  process  like  the 
than  this,  nor  have  we  ever  pretended  to  urge  anyj  one  before  us,  is  to  be  regarded  as  an  act  of  ag- 
considerations  but  in  behalf  of  ourselves  and  ouri Agression,  calculated  to  impair  the  consideration  of 
own  primary  unalienable  rights.  We  are  called  the  Government,  then  I  can  only  say  that  my 
upon  to  do  certain  things — we  simply  propose  to!  opinion  differs  most  widely  from  the  gentleman 
say  why  it  is  that  we  are  not  by  law  bound  to  do|  |who  defend  these  proceedings,  both  as  lo  profes- 
those  things,  and  allege  our  own  rights  in  our  ownj  sional  and  civil  duty,  and  ax  to  the  bearing  and 
defence.  Teflecl  of  such  discharge   of  duty  upon  a  constitu- 

What  effect  this  may  or  may  not  have  upon  the  tional  Government  like  ours, 
interests  of  aliens — rfghls  they  have  none  in  this  |  When  the  Congress  met  to  make  temporary  pro- 
jurisdiction — is  totally  beside  the  question.  It  can  vision  for  the  Government  of  the  Confederate 
scarcely  be  that  the  rights  of  a  citizen  are  to  be|  States,  it  may  have  been  competent  for  them  to 
sacriticed  or  abridged  in  consequence  of  any  possi-|  postpone  for  the  present,  at  least,  the  checks  and 
ble  influence  which  their  assertion  may  be  regard  'restrictions  upon  the  central  authority  which  were 
ed  likely  to  exert  just  at  the  moment  on  the  iiiter-|  judged  judicious  for  our  permanent  condition — 
ests  of  our  enemies.  Strange,  indeed,  would  it  be,  providing  for  the  moment  only  what  was  necessary 
if  a  question  of  constitutional  right  or  constitutional'  for  the  elibrts  required  lor  common  defence.  They 
power  were  to  be  influenced  by  foreign  and  tein-  determined,  however,  to  pursue  a  different  course, 
porary  considerations  of  this  nature.  Again,  it  is  and  to  propose  immediately  the  organic  law  by 
said  that  this  Act  may  be  defended  on  grounds  of^  which  the  Confederation  was  to  be  governed  until 

retaliation a  resort   to  which  is  a  necessary  mea-  a  more  permanent  Constitution  should  be  adopted, 

sure  of  war.  [providing    as  necessary    to  this,    tribunals  whose 

That  a  belligerent,  in  possession  of  sovereign!  solemn  duty  it  should  be  to  arrest  any  excess  or 
power,  can  during  war  exert  this  in  any  way  that  departure  on  the  part  of  the  legislative  or  execu- 
is  demanded  by  proper  retaliation,  may  be  con-  live  branches  of  the  Government, 
ceded-  but  that  the  right  of  retaliation  will  change  This  was  ratified  and  accepted  by  the  State  of 
the  distribution  of  political  power,  and  remove  which  we  are  citizens,  and  became,  as  was  gene- 
constitutional  restrictions  in  a  Government  likej  rally  supposed,  the  law  of  our  political  existence, 
ours  cannot  find  so  ready  an  assent.  If  it  were  mII  not  intended  as  a  reality,  with   all    its 

A  Constitution  would  indeed  be  a  very  plastic  mportant  consequences,  then,  certainly,  a  great 
and  shifting  sort  of  a  being  if  this  were  the  case,  mistake  has  been  made  by  some  of  us.  We  have 
If  the  central  agency  in  such  a  Constitutional  Gov-  not  regarded  the  constitutional  guarantees  and 
ernment  could  acquire  powers  not  previously  restrictions  provided  for  during  our  provisional 
possessed  through  the  excesses  or  usurpations  of  condition  as  a  mere  appearance,  something  which 
their  enemies  then  the  halls  of  legis^lation  would  was  to  be  looked  at  with  a  decorous  respect,  but 
furnish  them  the  means  of  an  attack  as  fatal  as  it  which  could  not  be  invoked,  and  was  not  designed 
would  be  secure.  to  aflbrd  solid  support  when  rested  upon,  which    it 

And  now  to  the  considerations  of  an  extra  judi-;  was  not,  therefore,  proper  to  expose  by  such 
cial  complexion  which  have  been  presented  on  the  retort. 

other  side.  The  argumenissubmitted  and  grounds  If  this  be  the  patriotic  view  of  the  subject,  I  must 
taken  in  opposition  to  the  mandate  issued  under  admit  that  it  has  not  been  mine,  for  then  it  has  been 
this  law,  have  been  characterized  as  somewhatjjiny  error  to  suppose  that  the  Provisional  Constitu- 
partaking  of  the  nature  of  an  attack  on  the  Gov-,  tion,  with  its  promises  of  safeguard  and  protection, 
ernment -that  Government  which  isjust  strugding  was  a  work  of  reality  and  truth,  and  that  it  was 
into  existence,  and  encountering,  as  it  is  said,  very  not  only  a  civil  right,  but  a  professionaj  duty  so  to 
hateful  efforts  to  crush  it,  is  entitled  to  all  our  regard  and  treat  it.  Thinking  that  the  present  pro- 
sympathie«,  and  which  we  should  rather  strengthen  ceedings  presented  a  clear  instance  of  usurpation 
by  every  eflort  in  our  power  than  weaken  by  ;ig-  and  excess  most  oppressive  in  its  character  and  of 
gression  of  any  sort.  |  most  mischievous  consequences,  it    seemed   to    us 

Respect  is  due  to  every  over-weighty  burthen,;  to  be  little  less  than  a  civil  duty  forthose  entertain- 
and  distress  is  always  entitled  to  indulgence.  The  ing  these  convictions  to  oppose  any  such  exercise 
straits  to  which  an  advocate  is  reduced  by  the  dif  of  extra  constitutional  power,  that  we  could  not, 
ficulties  or  deficiencies   of  his   cause  should  form  consistently  with  honor,  willingly  or    weakly    sur- 


ARGUMENT  OF  MR.  NELSON  MITCHELL  (IN  REPLY). 


33 


render  tboce   iminunities  which    touched    all    our 
social  relations. 

Nor  did  we  suppose  that  it  would  disparage  or 
weaken  the  Governm'ent  that  an  attempt  like  this 
should  be  called  to  the  Bar,  and  the  (uiidnmentiil 
law  be  appealed  to  against  the  validity  of  the  pro- 
ceedings. 

Who  exhibit  more  solid  respect  and  true  reliance 
noon  the  Government  in  any  just  or  comprehensive 
sense;  those  who  think  that  it  is  loo  weak  to  en- 
dure safely  any  attempt  to  arraign  proceedings 
like  the  present — or  those,  who  having  faith  in  its 
substantial  structure,  believe  that  an  Act  of  Con 
gress,  or  the  opinion  of  the  Attorney-General,  may 
bv  questioned  without  impairing  its  strength  or  iis 
efficit-'ncy,  would  apparently  be  a  question  about 
which  the  learned  counsel  and  ourselves  might 
differ. 

I  cannot  depart  from  the  opinion  that  a  decorous 
and  open  appeal  to  the  laws  and  tRe  fiindnniental 
act  of  the  Government  against  what  I  believe  lo 
be  the  perver.^ion  of  one  branch  of  its  poM'er — 
mischievous  and  oppressive  now,  and  productive 
of  infinitely  more  mischief  and  oppression  in  the 
future — is  an  act  of  the  truest  support  and  the 
highest  respect. 

Of  course  questions  like  these  make  diflerent 
impressions  Irom  diflerent  points  of  view,  nor 
should  any  be  judged  except  according  to  his  own 
convictions.     1  certainly  would    not    undertake  to 


deny  that  the  general  warrants  of  the  last  century, 
or  the  Star  Chamber  practice  of  the  previous  cen- 
tury, might  not  have  been  honestly  defended  in  the 
opinion  that  this  was  consistent  with  pairioiism 
Hiid  public  duty.  That  they  were  defended  with 
loud  profession  of  ihese  sentiments  who  can  doubt? 
Siill  less  would  I  have  a  right  to  quesiion  these 
sentiments  as  to  any  that  can  see  in  this  precept 
only  a  legal  process  which  does  not  infringe  the 
rights  of  the  citizen  or  abridge  his  liberty.  Only  it 
we  are  to  go  to  the  country,  I  cannoi,  whatever  may 
be  the  consequences,  admit  that  I  share  such  aa 
opinion. 

It  is,  however,  my  satisfaction  to  think  that  there 
IS  in  that  country  .'O  much  of  intelligence  and  justice 
that  they  cannot  be  persuaded  to  see  in  an  appeal  to 
ri-jhtsguaranteed  to  us  by  the  Constitution,  either 
an  attack  or  a  reflection  upon  that  Constitution. 

It  is  perhaps  the  tendency  of  its  profession  tobring 
us  very  much  und'-r  its  influence  of  precedent,  not 
only  as  to  legal  principles,  but  its  precedent  and  exam- 
ple of  character.  It  may  thus  be  that  the  spirit  and 
conduct  of  the  brave  Maynard  and  others  of 
his  stamp  have  had  too  much  influence  upon  those 
who  have  come  alter  them.  It  was  hislntto  have 
to  meet  in  the  path  of  what  he  believed  to  be  duty 
the  ^^v  It /t  us  171. it  an  lis  tyranfit.'' — and  he  did  not 
shrink — may  we  not  swerve  if  in  the  same  path  we 
have  to  encounter  (which  1  trust  will  not  be)  the 
'  civium  nrdor pravajubentium." 


AllGUMENT  OF  MR.  J.  W.  WILKINSON. 


Mr.  Wilkinson  said,  lie  iiad  no  objeoiions  lo^ 
make  on  constiiuiional  grounds,  eiiher  to  the  Act 
itself,  or  the  proceedings  inuler  it.  That  war  gives 
the  right  to  the  Sovereign  lo  seize  and  confiscate 
the  property  of  the  enemy,  wherever  found,  and  of 
whatever  nature,  wheilier  tangible  or  intangible, 
is  so  universally  conceded  by  all  authority  uponl 
the  subject,  ihat  it  v^'ould  be  idle  to  controvert  it. 
That  the  sovereign  States  had,  by  express  grant  ini 
their  Articles  o/  Confederation,  transferred 
this  right  to  the  Central  Government,  he  thought, 
was  as  little  to  be  disputed.  The  clause  which 
confers  upon  Congress  the  power  "  lo  declare  war, 
grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water," 
was  so  explicit  as  to  leave  no  room  for  interpre- 
tation. The  unlimited  power  to  capture  includes 
conti^cation,  and  both  must  sub.si?t  us  express 
powers  of  the  Government,  until  the  mutations  o( 
langui^ge  shall  annihilate  the  Constitution  alto- 
gether. So  thought  and  declared  the  Supreme 
Court  of  the  United  Stales,  a  half  a  century  ago, 
under  the  old  Constitution,  and  there  is  nothing  in 
the  principles  of  the  new  that  disclaims  ihe  de- 
cision. The  new  Government  was  intended  to 
possess  all  ihe  vigor  of  the  old,  in  the  management 
of  its  external  relations,  and  the  powers  which 
relate  to  this  class  of  its  duties,  never  have  been 
and  are  not  now  the  objects  of  jealousy.  They 
cannot  he  leliered  by  narrow  construction,  without 
rendering  the  Government  powerless  in  its  own 
defence,  iind  endangering  the  common  safety- 

The  Act  in  question  was  clearly  v.'ithin  the  legit 
imaie  exercise  of  this  power.  The  proi)erty  ol 
alien  enemies  had  been  thereby,  in  fact  and  in  law, 
sequestered,  and  the  title  thereto  transferred  In 
the  C-'iifederate  Government.  Possessing  the 
righ',  it  would  be  illusory  and  absurd,  w-ithout  all 
necessary  remedies  lo  enforce  it.  He  saw  ii( 
reasonahle  objection,  in  princi))le,  to  the  proceed 
ings  directed  by  the  Act  and  instituted  by  tlie_ 
Court  fjr  that  purpose.  In  some  of  the  details  of 
form,  it  mi^ht,  perhaps,  be  improved.  It  is  cer 
tainly  true  that  it  is  not  a  process  precisely  in  any 
ofthe  forms  in  ordinary  use.  No  such  would 
have  answered  the  purpose,  for  the  simple  reasoi 
that  the  ca^e  is  an  exigency,  and  not  within  the 
routine  of  ordinary  business.  Sequestration  and 
the  necessity  of  proceeding  for  the  discovery  and 
seizure  of  enemies  pro|)erty,  he  was  happy  lo  say 
were  not  of  every  day  occurrence.  When  they  do 
occur,  iheretbre  it  was  not  surprising,  but  una 
voidable,  that  the  process  employed  should,  in  some 
measure,  depart  from  the  features  which  are 
familiar  to  us.  But  he  was  not  alarmed  at  such 
new  appearances  if  the  alterations  are  warranted 
by  legal  authority  and  trenched  upon  no  funda 
mental  principle. 

Under  the  Judiciary  Act  of  17S9,  made  of  force 
by  the  Confederate  Congress,  this  Court  does  pos 
sess  the  authority  to  alter  the  forms  of  its  process 
in  such  manner  as,  in  its  discretion,  it   shall  deem 


expedietit,  to  meet  the  demands  of  its  jurisdictioD. 
As  to  any  novelty,  therefore,  in  the  form 
of  the  process  in  this  case,  he  must  look 
beyond  and  see  whether  there  lies  concealed 
beneath  the  change  any  treachery  or  enormity  in 
disguise,  any  usurpation  upon  common  right,  or 
assumption  of  unconstitutional  jurisdiction,  before 
he  ran  out  into  the  highway  and  sounded  the  alarm 
that  Hannibal  was  at  the  gates.  The  role  of  Joha 
Hampden  could  not  be  well  played  without  the 
presence  of  Ship  Money.  King  Charles' halter,  also, 
or  some  equal  hazard,  was  essential, to  eivelo  ihe 
performancethe  vitality  of  the  original.  The  true  in- 
quiry was,  "Does  the  precept,  in  its  na'ure,  or  the 
extent  oiits  requisitions  transcend  llic  limits  which 
mark  theboundixry  between  public  and  private  right, 
between  the  powersol  Government  and  thereserved 
liberties  ofthe  citizen  V 

He  did  not  conceive  that  any  such  aggression 
could  seriously  be  attributed  to  it.  He  could  dis- 
cover in  it  nothing  beyond  or  beside  ihe  exercise 
of  a  t'nnction,  familiar  in  the  every  day  administra- 
tion of  judicial  justice.  The  Writ  of  ^^S/tbjja:/ia  ail 
testificandum,^^  and  Bill  in  Equity  for  discovery, 
are  perfectly  understood  in  the  practice  of  the 
Courts.  The  foundation  of  both  is  a  right  in  the 
supreme  power  to  sift  the  conscience  ofthe  sub- 
ject. 

Neither  of  these  have  ever  been  supposed  lo 
transcend  the  constitutional  authority  of  the  Gov- 
rnmcp.t,  or  encroach  upon  common  right.  Uni- 
versal consent  lias  conceded  to  all  Governments, 
that  pretend  lo  uphold  a  system  of  laws,  this  power, 
Without  the  possession  of  which  judicial  evideiii-e 
becomes  a  thing  of  the  fancy,  and  the  attempt  to 
administer  justice  would  be  turned  into  a  farce.  In 
the  common  cas«  the  State  compels  the  witnc-s  to 
testily  against  himselfor  his  fellow-citizen.  Sure- 
ly tliere  can  be  no  principle  of  the  Constitution 
whuh  restrains  the  right  to  compel  testiinony - 
again>l  tlie  public  enemy.  He  nad  not  intendetl  to 
argue  these  questions.  His  purpose  was  simply  to 
slate,  in  a  general  way,  his  reasons  for  not  resist- 
ing the  requisition  ofthe  process,  on  oiher  grounds 
than  those  he  had  set  forth  in  his  plea.  The  plea 
tiled   brought  up  a  narrower  issue. 

Admiiting  the  validity  of  the  lav/  and  the  regu- 
Iwriiyof  the  proceedings  under  it,  the  inquiry  re- 
solved i  self  into  one  purely  of  construction.  In 
obedience  to  the  mandate  of  the  Court  he  was  be- 
fore it-  In  reply  to  the  interrogatories  ot'  the  Writ 
he  answered  tliat  he  had  no  knowledge  of  the 
matters  and  things  inquired  into,  besides  what  he 
had  derived  from  contidential  communicaiioti  be- 
tween atiorney  and  client,  and  for  these  he  claims 
the  benefit  of  his  privilege,  exempting  them  from 
(tisclomre.  He  did  not  doubt  that  Congress  had 
the  power  to  repeal  lh«t  privilege,  if  it  had  so  de- 
signed. But  the  question  was,  had  it  done  so? 
The  Act  was  its  own  best  expositor.  Was  there 
anything  in  its  language,  or  in  the  scheme  of  Us 
provisions,  which  expressly   or    by  implication,  re- 


ARGUMENT  OF  MR.  J.  W.  WILKINSON. 


95 


pealed  this  rule  of  the  common  law,  founded  in 
policy,  and  long  held  sacred  as  e-seiuial  to  the 
interests  of  justice?  Il  is  true  that  attorneys  are 
speciiically  enumerated  jamong  those  subjected  to 
examination  under  its  provi^ions.  It  does  no! 
distinguish  between  attorneys  in  lacland  attorneys 
at  law;  and  if  the  necessity  of  the  argument  re 
quired  resort  to  a  discrimination  of  this  nature,  it 
might  with  reason  be  appealed  to.  It  is  not  denied, 
however,  that  the  Act  includes  all  attorneys. 

The  decisive  question  is,  to  what  extent,  and 
under  what  limiialions,  if  any,  does  the  Act  inteiio 
that  the  attorney  shall  be  compelled  to  give  the  in- 
formation inquired  to?  Is  he  to  be  stripped  ol 
his  privilege,  and  forced  to  discover  wiihoiu 
reservation;  or  is  he  still  lo  be  entitled  to  the  same 
protection  as  at  conunoii  law?  It  is  a  general  rule 
that  siaintes  shall  be  construed  in  reference  lo 
the  principles  of  the  common  Uvv,  l'o5_  it  is  noi  to 
be  presumed  lluit  the  Legislalur^inleiuled  to  niiike 
any  iniiovation  upon  the  common  law,  further  ili^n 
the  case  absolutely  required.  The  law  rather  in 
fers  that  the  Act  did  not  intend  to  make  any  alter- 
ation, other  than  what  is  specified,  and  besides 
what  has  been  plainly  pronomu-ed.  For  if  the 
Legislature  had  that  design,  it  is  natural  to  suppose 
that  they  would  have  expressed  it.  These  are 
caoons  of  interpretation  so  tamijiur  as  to  require 
no  chapter  and  verse  lo  authenticate  them.  '-For 
all  words,"  says  Lord  Bacon,  "  whether  ihey  bo  m 
deeds,  or  statiiies,  or  otherwise,  il'ihey  be  general 
and  not  express  or  precise,  shall  be  restrained 
unto  the  fitness  of  the  matter  or  person."  Bacon's 
Maxims,  52.  "The  best  inierpretaiion  of  a  statute 
is  to  construe  il  as  near  lo  the  rule  and  reason  of 
the  common  law  as  may  be,  and  by  the  course 
whicfi  that  observes  in  other  cases.''  2  Inst.  143 
201.  "General  words  do  not  lake  away  a  particu 
lar  benefit  or  privilege;  as  the  iStatute,  West,  2  c 
'  13,  which  gives  an  elegit,  does  not  lake  away  the 
privilege  an  inf'ant  has,  that  he  shall  not  be  sued 
during  his  nonage."     2  Inst.  375. 

Now  what  was  the  rule  of  the   common    law    in 
relation  to  privileged  communications,  as  it   stood 
k  at  the  passing  of  this  Act  ?     "As    between  a  client 
J  and  his  legal  adviser  the  rule  is  clear  and  well  set 
*lled,  that    the  confidential    counsellor,   solicitor  or 
#8ttorney    of  the  parly  cannot  be  compelled    to  dis- 
,    close  papers  delivered  or  communications  made  to 
him,  er  letters  or  entries  made  by    him   in    that  ca- 
pacity.'     1  Greanleaf  Ev.  chap.  1.3,  sec.  2.37. 

"This  protection,"'  says  Lord  Brougham,  "is  not 
qualified  by  any  reference  to  proceedings  pending 
or  in  conieinpiation.  If  touching  matters  Thai 
come  within  the  ordinary  scope  of  professional 
employment,  they  receive  a  communication  in 
their  professional  capacity,  either  from  a  client 
or  on  his  account,  and  lor  his  benefii,  in  the  trans 
action  of  his  'uusiness,  they  are  not  only  justified 
in  withholdinsr  such  niaiters.  but  bound  to  withhold 
them,  and  will  not  be  compelled  to  disclose  the  in- 
formation or  produce  the  papers  in  any  Court  ot 
Law  or  Equity,  either  as'partyor  witness"  Green  j 
ouch  vs.  Ga>kell.  1    My.  and  R.  102,  103 

The  foundation  of  the  rule  he  adils  is,  "regard  to 
the  interests  of  jus'ice,  which  cannot  be  iipholden. 
and  to  the  administration  of  justice  which  cannotj 
^^  go  on  if  such  coiiimunications  are  \\r\  protected.  No| 
man  otherwise  would  dare  to  consult  a  professional 
adviser  with  a  view  to  his  defence  or  lo  the 
enforcement  of  his  rights  ;  and  no  man  could  safely 
come  into  a  Court  either  to  obtain  redress  or  lo; 
defend  himself.' 

Such  being  the  rule  of  the  ccmmon  law,  is  there! 


anything  in  the  Act  which  expres^ly  or  by  implica- 
tion repeals  it  ?  Otherwise  the  rule  of  interpre- 
tation above  referred  to  will  not  permit  it  to  he 
disturbed.  There  is  nothing  unless  it  be  found  in 
the  clause  enumerating  attorneys  among  those 
subjected  to  process  of  examinaiion.  But  in  thi« 
the  Act  has  left  him  just  where  it  Ibund  him.  Al- 
ways amenable  to  judicial  examination  at  the 
common  law,  he  is  made  so  under  the  Act,  nothing 
ii;ore.  Not  a  word,  express  or  by  impl  cation, 
whith  extends  the  rielil  of  examinaiion  beyond,  or 
lestrictsthe  privilege  of  the  attorney  wiihin  the 
limits  allowed  at  common  law.  Il  would  be  a  vio- 
lent departure  from  principles  to  adopt  any  other 
loustruclion  than  that  the  examinaiion  is  lo  be 
conducted  under  the  Act  with  strict  reference  to 
•,iie  law  relaiing  to  privileged  com-nunications. 

The  Iramers  of  tiiis  siatiile  understood  well  the 
nature  and  extent  of  this  privilege  and  the  lenacity 
with  which  ihe  prolession  adheie  to  il,  and  if  they 
had  intended  to  remove  the  impediment,  would 
surely  have  signified  the  intention  by  unequivocal 
expressions.  Lawycs  tliemstlves,  many  of  ihera, 
ibey  appreciated  loo  thoroughly  the  extent  to 
which  ihe  p^ofe^sional  honor  of  the  country  is  en- 
gaged to  jj.hold  this  privilege,  and  its  delicacy  as 
a  matter  touching  the  public  f-iith,  lo  think  of  tam- 
pering with  it,  under  any  notion  of  an  obligation 
extinguished  by  a  state  ol  war.  Obligations  of  this 
-on  are  not  in  their  nature  destruciible  like  civil 
rights  by  a  change  in  political  relations.  The  faith- 
lul  observance  of  them  is  due  not  to  the  enemy, 
buttonurown  national  honor.  The  nation  that, 
under  the  pretext  of  war,  should  rifle  the  pro- 
fessional bosom  of  the  conlidenc-es  reposed  there, 
in  a  tiii:e  ol  peace,  under  a  pledge  of  inviolability, 
held  out  by  its  own  laws,  would  commit  a  perfidy 
not  differing  in  moral  estimation  from  that  of  an 
individual  who  should  seek  to  destroy  an  enemy, 
once  a  friend,  by  breaking  the  seal  of  former  con- 
fidence. 

The  legal  profession  is,  in  some  sense,  a  pan  of 
the  Magistracy.  Il  bears  oflicial  relations  to  the 
Governmeni  in  that  branch  of  its  functions  which 
relates  to  the  administration  of  ju-'^tice.  Its  duties 
are  in  their  iiaiure  'lublic  as  well  as  private.  Il  is 
engaged  lo  fidelity  in  the  performance  of  these  by 
the  solemnily  of  an  oaih.  Professional  character 
and  privileges  are  dealt  with  by  jU'licial  authority 
as  things  which  relate  to  its  officers.  When, 
therefore,  the  public  authority  has  once  held  out 
this  class  of  its  citizens,  as  an  excepted  class — as 
persons  exempted  from  the  general  obligations  of 
law  to  disclose  comrnuiiicalions  made  to  them  in 
confidence — it  has  in  efTect  invited  the  world  to 
repose  confidence  in  itself,  under  a  pledge  that  il 
shall  forever  be  inviolable.  It  is  as  much  a  pledge 
of  the  public  faith,  and  infinitely  more  sacred  in  ils 
character,  than  that  which  supplies  the  reason  of 
the  exceptions  made  in  the  Act  in  favor  of  the 
Bonds  and  Siocks  of  the  Government  held  by  the 
enemy.  It  is  difficult  to  conceive  that  the  Con- 
Ures?  did  not  inlend  the  exception  to  include  all 
cases  alike  wiihin  its  principle. 

The  duly  lo  lorleit  nothing,  which  reposes  for 
security  upon  tlie  public  I'aith.  as  distinguished 
'from  civil  rtmedy,  is  recognized  in  the  law  of  na- 
tions, ami  classed  among  those  internal  obligations, 
which  cannot  f'C  alfected  by  changes  in  ihe  exler- 
jnal  relations  of  a  State.  And,  whether  the  subject- 
'matter  be  a  Governmeni  bond,  or  a  professional 
communication,  the  obligation  is  the  same.  How 
|wonld  ihe  Court  proceed  under  this  Act,  to  examine 
'a  wife,  whose  husband  was    an  alien    enemy,    or 


36 


THE  SEQUESTRATION  ACT. 


vice  versa/  Is  it  to  be  presumed  that  Congress 
intended  to  prostrate  the  saored  defences  of  thai 
relation  ?  Can  there  be  a  necessity  so  pressinar,  as 
to  justify  intrusion  into  relations  which  the  law 
cannot  permit  to  be  invaded,  without  creating  a 
distrust,  that  must  repel  mankind  from  tlie  society 
oteach  other,  and  drive  him  to  solitude  lor  safety? 
There  is  no  principle  that  will  limit  the  construe 
tion  in  the  one  case,  and  not  in  the  other.  The 
privilege  of  neither  of  those  relations  are  iniende't 
by  the  statute  to  be  impaired.  Both  are  subject  to 
examination,  respecting  the  property  of  alien  ene-, 
inies,  under  the  same  limitations  and  restrictions 
as  at  common  law.  j 

It  had  been  intimated,  and  to  some  extent  argued, [ 
that  the  plea  of  privilege  communication  ilid  not 
extend  to  property  in  the  shape  of  notes  and  other 
evidences  of  title  or  debt  in  the  possession  or 
control  of  an  attorney.  But  this  distinction  cannot 
be  maintained  upon  the  authorities.  Such  docu 
menls,  whether  they  are  to  be  viewed  as  property 
or  otherwise,  are  expressly  within  the  language  of 
the  decisions  relating  to  contidential  communi 
cations,  and  could  not  be  excluded  without  aban- 
doning the  principle  of  the  rule. 

In  conclusion,  he  would  say  a  few  words  upon 
the  general  character  of  the  Act.  Its  object  had 
been  legitimate  enough — to  sequestrate  the  ene 
mies  property  lor  the  double  purpose  of  weakening 
him  and  indemnifying  the  losses  of  our  own  citi- 
zens. Some  of  lis  provisions,  however,  looked 
very  much  as  if  its  practical  operation  might  re- 
verse this  policy,  weaken  and  despoil  the  citizens 
of  the  Confederacy  and  proleci  the  enemy  even- 
tually against  all  loss  and  injury.  Sequestration 
has,  by  no  means,  the  finality  of  confiscation.     As 


jyet  the  Government  has  interposed  only  in  the 
jcharacler  ot  s.eward.  It  as^Ulnes  the  possession 
land  control  of  enemy's  property,  possibly  to  be- 
come chargeable  at  a  future  day  to  the  alien  enemy 
lor  every  dollar  paid  in;o  iis  treasury.  In  such 
event  it  is  manil'est  that  the  entire  proceeding  is 
eminently^  for  the  bent  fit  of  the  enemy.  His  del)t 
iand  all  other  civil  rights  were  already  su>pn;nded. 
In  the  progress  of  the  war  they  were  liable  to 
spoil  and  waste,  and  it  is  a  reasonable  calculitiou 
that  the  Act  of  Sequestration  now  being  put  in 
execution  affords  him  the  best  security,  undrr  all 
the  coniingencies,  for  the  ultimate  restoration  of 
its  rights.  But  the  Courts  must  see  to  it  that  this 
Jagencv  for  the  benefit  of  the  alien  enemy  shall  not 
ibe  permitted  without  a  judicial  necessity,  to  work 
irreparable  injury  to  the  citizens  of  the  Confederate 
States.  Construction  must  be  called  in  aid  to  give 
effect  to  the  words  of  the  Act  in  strict  reference 
jand  subordination  to  the  great  objects  which  cou- 
'stitutethe  policy  of  the  enactment,  rejecting  every 
intendment  which  shall,  in  its  practical  elite  ,  im- 
pair our  own  strength  instead  of  that  of  the  enemy. 
In  his  judgment,  every  feature  of  the  Act 
which  seemed  objectionable,  and  had  made  indis 
criminate  o|)position  to  the  authority  which  passed 
it,  quite  the  popular  humor  of  the  hour,  not  only 
admitted,  but  upon,  sound  principles  of  judicial 
criticism,  required  such  a  con?truction,  as  disarm- 
d  it  of  all  power  of  injury.  Fortunately,  in  the 
careless  penning  of  the  Act,  those  provisions  which 
threatened  most  inconvenience,  are  counteracted 
by  others  of  a  conflicting  intendment,  and  the 
alternative  is  open  to  the  Court  to  adopt  such  con- 
struction as  shall  effectuate  the  objects  of  the 
Legislature,  without  inflicting  disaster  upon  the 
citizens  of  the  Confederate  States. 


REMAEKS  or  MR.  MILES,  DISTRICT  ATTOR]VEY, 

IN  KEPLY  TO  MR,  J.  W.  WILKI>'.SOX,  ON  THE  PLEA  TO  THE  WRIT  OF 

GARNISHMENT. 


Mr.  Miles  caid  ihat  he  cordiallyacqiiiesced  in  all 
Ihai  bad  been  .'o  fbrcibly  said  by  ih«  Counsel,  both 
as  to  the  Aul  of  Sequesiralion  itselT,  and  also  as  lo 
the  point  that  the  Act  was  not  intended  to  trench 
upon  the  iniporiani  rule  of-law  m  regard  to  "|)ri 
vilea:ed  c.ntnintinicaiions."  It  was  only  necessary 
for  him,  therefore,  tocall  the  ntieiitionof  the  Court 
to  some  distinctions  which  had  ^ot  beeh  drawn  by 
by  ilie  (/ounsel. 

The  rule  in  discussion  is  part  ol  the  law  of  evi- 
deuce  and  stated  in  ireatiesou  ihe.-uhjeci  underthe 
head  ofi  he  admissibility  of  testimony  as  an  imponam 
exception  to  the  general  ruje  as  lu  testimony,  and 
declares  that  no  Attorney  at  Law  is  not  a  compeient 
witness  as  lo  informaiion  rontided  to  him  in  his  pro- 
fessionalcapaciiy  by  his  client  This  isa  privilege  of 
the  client  which  he  can  waive,  but  which  the  Attor 
ney  will  not  be  allowed  to  infringe.  (1  Greenleat  Evi  ', 
The  rule  is  therefore  to  be  conliiied  in  it  applica- 
tion to  comimmi cation X  made  to  the  Attorney  pro 
fessionally,  and  to  such  as  were  intended  to  be 
confidetitial.  (1  Greenleaf  Evi  )  And,  (to  confine  the 
discussion  lo  the  cases  arising  under  the  Seques- 
tration Act)  it  can  in  no  just  sense  be  ajiplied  to 
pro^>^/Vy  in  the  hands  o(  an  Attorney  belonging  to 
alien  enemies,  because,  confiding  property  to  an 
Attorney  is  in  no  sense  a  "privileged  communica- 
tion." There  is  more  force  in  the  argument  as  ap- 
plied to  dociime.7itary  evidcvce.i  oj  property  eniTUfled 
to  the  Aitorney  in  his  professional  capacity  by, 
a  client  who  has  since  become  an  alien  enemy. 
The  Court  will  doubtless  in  all  cases  distinguish 
between  ^^ihe  property  and  ffftctx  of  alien  enemies, 
in  the  pos.ses8ion,  custody   and   control'"    ot  an  At- 


torney; and  the  ivformation  in  regard  to  property 
.ind  effects  of  alien  enemies  confidentially  confied 
lo  him  TUe  2Troperl.y  he  .nust  return,  the  informa- 
tion he  will  not  be  allowed  to  divulge. 

The  Aitorney  upon  whom  the  Writ  of  Gariii^h- 
nieni  is  served  must  therefore  responil  fully  as  to 
the  properly  under  his  contol — but  the  information 
he  niii>t  drcliiie  to  give.  It  is  not  suMicient  lor 
him  !o  an.-wer  that  "he  knows  nothing  in  relation 
to  alien  enemies  property  except  what  has  been 
conhded  lo  him  confidentially,"  but  he  must  in  ail- 
dition,  state  whether  he  I, olds  or  controls  any 
properly.  An  Attorney  at  Law  may  be  an  Execu- 
tor or  Agent,  and  in  that  capacity  hold,  exercise 
supervision  over,  and  control  property,  real  and 
personal,  of  alien  enemies,  and  he  cannot  be  exempt 
from  making  return  of  it  to  the  Receiver  because 
at  the  same  time  he  is  the  legal  adviser  of  the  es- 
tate or  owner;  or  becaus-e  the  property  may  have 
been  enirusted  to  him  because  of  his  relations  to 
the  owner  as  legal  adviser. 

A  judgment  in  favor  of  an  alien  enemy,  or  a  note 
in  suit  lor  him,  "controlled"  by  an  Attorney  at 
Law,  are  properly,  and  not  "communications"  eith- 
er "confidential"  or  "privileged."'  Hence  the 
exceptions  to  this  return,  that  it  does  not  answer 
the  writ,  inasmuch  as  it  does  not  disclose  wheth- 
er the  respondent  has  any  properly  of  alien  ene- 
mies in  his  possession,  which  properly  would  not 
be  within  the  rule.  The  return  is  suliicient  as 
to  "information"  which  he  may  po.<<ess  as  to  pro- 
perty of  alien  enetnies,  apart  from  the  property  in 
his  possession  and  control. 


AllGUMENT  or  MR.  EDWARD  M^CRADY. 


Mr.  McCrady  mid,l  propose  to  make  three  points 
inihisca>e.  First,  Thai  Congress  under  the  Consli- 
tution  of  ihe  Provisional  Government  has  no  power 
to  pass  the  Act.  Second,  That  the  Writ  is  not 
authorized  hv  the  Act  il  it  be  lOiistiiutional.  Third, 
That  Congiess  has  no  power  to  authorize  such  a 
Writ,  even  if  they  had  the  i)Ower  to  seque.-trate. 
First,  as  to  the  ccn-tiluiionality  ofthe  Act.  If  an 
npology  be  necessary  (or  a  vigorous  oppo?ilion  on 
this  ground,  I  appeal  to  our  history  under  the  Con 
Ftitution  of  the  United  States. 

An  Act  was  passed  very  early  in  our  na- 
tional existence,  as  the  United  States,  under  i he 
power  to  impose  duties,  which  contained  a  clause 
which  at  that  time  seemed  as  nothing.  It  alfirined 
the  propriety  of  taking-  care  of  man'ifactures.  To 
what  coiist-quences  did  that  grow?  To  the  disrup  | 
lion  of  the  Unio.i,  the  formation  of  the  Governmi'nt[ 
which  we  have  now  formed;  to  this  bloody  war;: 
all  tiave  proceeded  in  a  great  measure  through  or! 
Irom  that  inadvertence.  ! 

There  are  no  times  so  liable  to  error  as  when  aj 
people  are  rush'ng  forth  to  a  great  work.  You  arej 
ready  to  confide  and  glad  to  co-operate,  almost! 
rejoicing  to  praise,  and  the  laull  finder  is  viewedj 
wiih  an  evil  eye.  But  he  may  be  the  wisest  man,| 
the  most  prudent  man,  and  the  man  to  whom, 
posterity  may  owe  the  mosi. 

When  at  the  veryoutsetl  iierceivea  wrong  incli  | 
nation  given  to  the  Government,  1  can  meet  it  then 
as  a  patriot,  with  as  full  a  love  of  country  as  can! 
exist  in  the  breast  of  any  one  who  chooses 
to  defend  what  I  conceive  to  be  the  error.  I  sup- 
posed we  had  all  agreed  upon  the  theory  of  our 
Government,  and  that  our  view  was  that  inherent; 
intrinsic  sovereignty  belonged  only  to  the  Slates, 
that  there  was  no  inherent  sovereignty  in  the  Gov- 
ernment which  we  had  formed;  but  when  it  was 
necessary  only  we  have  granted  to  it  sovereign 
rights  which,  like  sovereisns  having  rights,  wt- 
could  grant,  and  which  we  could  take  away;, 
that  when  we  granted  those  rights  we  parted  with| 
none  of  that  essential  uliimate  sovereignty  which 
enables  us  to  control  abuses  or  reclaim  what  wel 
have  given.  We  have  asserted  this  in  all  our  Or- 
dinances of  Secession.  This  is  an  idea  as  familiar, 
to  the  English  mind  as  to  the  American  mind— as 
III  the  instance  ofthe  East  India  Company.  They 
are  subjects  ol  the  Crown,  yet  commandinga  greater 
extent  of  territory  than  that  at  home,  infinitely 
greater,  yet  they  are  sulijects  exercising  sovereign 
powers,  even  of  peace  and  war.  So  with  regard  to 
the  Provinces  in  America.  Did  they  not  all  enjoy 
sovereign  rights  'i  Were  not  subjects.  Lord  Pro 
prietors,  clothed  with  sovereign  rights  .'  Did  they 
not  have  their  Courts  of  Justice,  their  Legisla 
live  houses,  their  right  to  "make  v.'ar  and  pur>ue 
their  eiiemies  as  well  by  sea  or  by  land,  to  vanquish 
and  take  them,  and  being  taken  to  put  them  to 
death  by  the  law  ol' war  or  to  save  thtmi  at  their 
pleasure."  These  were  all  sovett  ign  rights  ad- 
ministered by  subjects.  This  is  no  thought  mert'ly 
of  this  occasion,  but  il  has  been   expressed   before 


[Mr.  McCreadv  here  read  from  a  pamphlet] 

Nowhere  is  precisely  this  doctrine.  It  is  not 
new  and  thence  grows  our  argument.  The  Gov- 
ernment ol  the  Confederate  Stales  has  sovereign 
rights  and  power^  which  are  granted  by  sovereigns. 
It  has  no  intrinsic  or  inhereni  soveregniy,  and  here 
I  think  my  /rietids  have  erred  in  sup|)Osing  that 
with  the  grant  of  sovereign  power  or  sovereign 
rights,  sovereignty  itself  was  conceded. 

1  admit  that  when  a  sovereign  power  is  granted, 
il  may  be  exercised  without  any  other  limit  than 
ihai  which  the  ConSlituiion  imposes,  as  freely  as 
any  sovereign  can  exercise  it.  But  it  behooves 
ihe  supporters  of  this  Act  to  show  that  power 
which  necessarily  carries  with  it  the  right  o(  con- 
fiscation. My  friends  meet  me  here  fairly,  and 
Ipoint  me  to  a  clause  in  the  Consiituiion.  The  first 
'Article,  sixth  Section,  eleventh  clause,  isas  follows: 
•'To  declare  war,  grant  letters  of  marque  and  re- 
prisal, and  make  rules  for  captures  on  land  and 
water;"  and  also  to  clause  17ih,  same  Article  and 
Section,  'to  make  laws  to  carry  these  powers  into 
execution  " 

In  what  part  of  this  clause  is  this  grant  to  be 
found.  It  is  not  found  in  the  power  to  grant  letters 
of  marque  and  reprisal.  But  it  is  said  to  be  found 
in  both  or  one  of  the  other  two  members  of  this 
clause. 

The  power  to  declare  war  is  said  to  contain  the 
power  to  confiscate.  Is  there  any  antecedent  pro- 
Ihabiliiy  thai  we  would  be  disposed  to  give  that 
Ipower  expressly  to  the  Govsrnment  at  this  time 
in  this  stage  ofthe  world?  Is  there  any  antecedent 
probability  that  we  would  grant  to  the  Government 
the  rigiit  to  confiscate  goods  within  our  Territory, 
i  which  have  been  there  in  the  confidence  of  the  alien 
enemy  when  at  peace,  held  and  enjoyed  under  our 
laws  by  our  permission  1  That  has,  of  late,  been 
considered  by  almost  every  writer,  as  that  which 
should  not  be  done.  You  may  find  even  those  who 
deny  that  there  is  right  anywhere  to  confiscate 
such  properly  as  to  debts.  It  is  said  by  a  writer, 
who,  I  think,  comes  nearer  the  truth  than  any 
other  on  this  subject.  (Levy  on  inercaniile  law; 
section  on  the  lights  ol  bellisferents,  Chapter  5, 
[No.  101,  p.  S5,) 

I  Says  (6  Series  Law  Library)  some  interna- 
jtionHl  writers  have  laid  down  the  doctrine  that 
debts  due  the  enemy  might  be  confiscated,  but 
such  a  right  cannot  be  maintained,  and  the  books 
do  not  furnish  a  single  insiance  of  the  seizure  ot 
idebts  or  a  decided  case  in  support  of  the  legality  ot 
Isuch  a  measure. 

1  "A  sovereign  may  force  a  debtor  to  pay  him  the 
debts  due  to  an  eueiny,  nut  that  could  never  dis- 
[charge  the  claim  agaiiut  ihe  consent  of  the  credi- 
tor." 

I  Whene'-er  the  case  came  up  by  some  means  or 
jother,  that  point  has  not  been  necessary  to  its 
Idecision.  We  look  in  vain  for  such  a  case.  L( 
ithere  has  been  a  case  in  our  books,  it  has  been  so 
ifar  back  in  antiquity  thai  now  we  cannoi  find  it. 
'     Judge  Story  says  that  in    the   ease  in  Dallas,  it 


ARGUMENT  OF  MR.  EDWARD  McCRADY. 


ao 


r^. 


was  not  denied  by  any  of  the  Judges  that  debis 
could  be  conliscattd.  Wil.son,  Justice,  denied  it. 
and  we  are  told  by  Chief  Justice  Chas-e  in  that 
case,  ihat  Chancellor  Wythe,  of  Virginia,  denied. 
it.  Wilfon,  J.,  says:  "When  the  United  Stales 
declared  their  independencs,  they  were  bound  lo 
receive  the  law  of  nations  in  its  modern  slate  oi 
purity  and  rehnemeni,  and  the  conti^eation  of  debts 
ha.s  ion};:  been  considered  disreputable." 

This  efl'eot  of  the  seniimenl  of  the  age  upon  the 
construction  of  ilie  Constitution,  does  not  stand 
alone  upon  Justice  Wilson's  opinion.  CUiel  Ju;*- 
tice  Marshall  does  not  think  it  lieneath  him  lo 
apply  this  s-anie  sentiment  of  the  world  to  the  inter- 
pretation of  the  Conslitnlion.  In  Brown  vs.  United 
States:  "The  Constitution  ol  the  United  Suue> 
was  framed  at  a  time  when  this  rule  (against  con- 
fiscation) was  received  throughout  the  civilizedl 
world.  In  ex[)0unding  ilie  Constitiuion,  a  con- 
struction ought  not  lightly  lo  be  adniilted  which 
would  give  to  a  declaration  of  war  an  eilect  in  this 
country  which  it  does  not  po.isess  elsewhere." 

Now  I  say  that  this  condition  ol  the  worla  at  its 
adoption,  does  and  ought  to  reflect  light  upon  the 
construction  of  our  Constitution.  I  will  proceed 
then  upon  its  construction.  Does,  thr  power  to 
declare  war  convey  with  it  necessarily  the  power 
to  confiscate?  I  say  no,  upon  precedent  and  upon 
authority  And  (irsi  we  start  with  the  fat't  thai  the 
United  Stales  had  identically  the  same  power  to 
declare  war.  The  power  is  repeatedly  exercised, 
but  where  is  the  Act  of  Conliscation  on  her  books 
prior  lo  the  time  when  the  Union  was  dissolved 
None  can  be  (bund.  In  a  period  of  seventy  years 
of  the  existence  of  the  United  Stales  under  this 
Constitution,  though  pressed  by  enemies,  contend- 
ing manfully  against  them,  making  conquests,  and 
yet  no  Act  of  Conliscation  was  passed.  Then  we 
have  in  her  history  the  fact  that  a  netion  may  exisi 
sevenly  years,  and  carry  on  war  without  an  Act  (I 
Confiscation,  and  thus  we  may  infer  that  our  Gov- 
erniiient  need  not  have  the  power  for  seventy 
years  to  come. 

My  friends  who  have  preceded  me  in  this  argu- 
ment, have  pill  this  matter  very  clearly.  The  9ih 
of  the  Articles  of  Confederation,  declare  thai  Con 
grcfs  sliall  have  the  sole  and  exclusive  right  and 
power  ol  determining  on  peace  or  war,  except  in 
certain  cases  of  threatened  invasion,  which  are 
also  excepted  in  this  Con.stilution.  The  sole  and 
f-xclusive  power  and  right  of  determining,  yet  llml 
I  'ongress  had  no  power  lo  confiscate,  appears  by 
Ilie  Preamble  to  the  Act  ot  Confiscation  passed  by 
this  Siale,  17S2. 

It  is  said  by  the  District  Attorney  there  is  a 
reason  lor  this,  and  that  the  reason  is  this:  that 
Congress,  under  the  Confederation,  had  no  power 
over  the  property  of  the  citizen  or  over  properly 
in  the  Slates.  Is  that  an  answer  to  the  argumeiu  ? 
That  is  a  confirmation  of  the  argument.  It  noi 
only  shows  the  fact  as  it  was,  but  I  insist  'haiii 
shows  thai  this|)ower  could  not  exist  in  the  United 
Slrtes  under  these  Articles,  and  that  these  two 
powers  were  severed.  By  the  whole  system  ol 
Conlederaiion  it  was  impossible  that  Congre-s 
should  have  the  power,  and  thai  is  a  fact  which  i- 
R*serted,  and  when  you  gel  at  the  reason  the  fact 
is  siill  the  same. 

[The  Judge.  Is  it  asserted  that  the  United; 
States,  under  the  CoBfederaiion,  could  not  confis-l 
cate  ? j  j 

It  IS  asserted  in  the  Act  of  Assembly.  I  think, 
where  it  ii  said  they  recommended  to  the  Slates  tt^ 
confiscate.     I  hnvenoi  lound  the  resolution  referred 


lo  in  that  Act.  I  have  presumed  that  there  never 
could  have  been  such  a  recital  by  ihe  men  of  that 
day  unless  there  had  been  such  a  rei-ommendation. 

But  if  you  doubt  the  fact,  I  would  appeal  to  the 
a  prion  argument.  They  had  no  power  as  a  Govern- 
ment at  all  upon  the  properly  in  ihe  respective 
Stales.  The  history  of  the  whole  proves  that  there 
was  no  power  to  act  upon  the  properly  in  the  Slates 
in  the  old  Confederacy.  And  here  you  have  these  i  wo 
jiowers  severed.  Then,  1  say,  the  power  to  declare 
war  is  shown,  by  matter  ot  fact  and  precedent,  not 
necessarily  to  involve  the  power  lo  confiscate. 
Even  under  the  Constitution  of  ihe  United  States 
u  was  so  decided. 

If  there  was  any  point  decided  in  Brown  against 
the  United  States,  thai  point  was  decided.  It  was 
iheonly  point  which  was  decided.  Judge  Story 
claimed  that  the  declaration  of  war  jiave  to  ihe 
President,  as  the  Executive,  ihe  right  to  coniiscate. 

Judge  Marshall  and  the  majority  of  ihe  Court 
said  no.  But  what  said  Judge  Marshall  of  that 
power.  Does  he  consider  it  to  carry  the  right  to 
confiscate.  At  the  time  when  seizure  was  made 
in  the  case  of  Brown  vs.  United  Slates  war  had 
been  declared,  letter.s  of  marque  and  repri,-al 
issued,  war  actually  going  on.  At  such  a  ti-ne 
Judge  Marshall  says,  I  consider  thai  this  lumler 
wa>  on  land,  not  on  tlie  seas,  and  it  is  tinder  the 
protection  ol  the  Government  on  land.  The  decla- 
ration ol  war  does  not  coniiscate  it,  nor  give  to 
any  agent  of  the  Government  the  right  to  seize  and 
confiscate  it. 

The  question  is,  first,  may  enemy's  property 
found  on  land  at  the  commencement  of  hostilities 
be  seized  and  coiulcnined  as  a  necessary  conse- 
quence of  the  declaration  ot  war?  That  is  the 
question.  His  response  is,  and  the  judgment  ot 
the  Court  is,  no,  it  is  not.  But  the  argument  of 
Judge  ]\Iarshall  is  not  only  negative  that  it  is  nol 
in  the  power  to  declare  war,  but  it  is  positive  that 
It  IS  elsewhere.  Judge  Marshall  sustains,  him'^clf 
by  relerence  lo  the  hmguage  of  this  clause.  [Hen- 
Mr.  MeCrady  rrad  from  Judge  Marshall.]  The 
Constitution  gives  to  Congress  power  to  declare 
war  and  has  enumerated  the  instrumenialilies — 
armies  and  navies,  letters  of  marque  and  reprisal  on 
enemy's  properly  and  the  power  lo  call  out  the  mi- 
litia. The  enumeration  of  ceitain  powers  is  gene- 
rally con-trued  as  the  exclusion  i>l  others. 

The  decision  ol  Judge  Marshall  and  the  mojoriiy 
of  the  Court  goes  upon  the  ground  tliat  the  power 
to  declare  'svar  was  one  sovereign  |)Ower,  and  the 
power  10  confiscate  altogether  another,  and  then 
the  declaration  of  war  was  only  one  act  of  sove- 
reignty, and  confiscation  another  act  o(  sovereign 
will.  Then,  ol  course,  they  are  distinct  and  diller- 
eiit  powers.  Jiidae  Marshall,  it  ir<  true,  makes  an 
unloriunale  assumption,  as  we  shall  hereafter  see, 
which  enabled  Judge  Story  to  deliver  a  dissenting 
opinion,  shoving  his  blunder. 

If  it  is  not  in  the  power  to  dtclare  war,  and  so 
it  is  decided  in  the  case  of  Brown  vs.  United 
Stales,  upon  the  identical  words  in  our  C-on- 
stitution.  If  it  be  not  there  is  it  in  the  other 
clause,  the  power  to  make  rules  concerning  cap- 
tures? Is  there  any  necessary  connection  between 
the  power  to  make  rules  concerning  captures  on 
land  and  Water  and  confiscations?  Cannot  ihe?-e 
powers  exist  apart?  If  Ihey  can  exist  apart 
then  there  is  no  necessary  connection  between 
them.  I  appeal  to  history  and  precedent.  Pre- 
cedent first:  the  same  Articles  ol  Conlederaiion. 
In  that  same  Article  Congress  was  invested  wi;h 
the  sole  and  exclusive  right  and  power  to  establish 


40 


THE  SEQIIESTRATIOX  ACT. 


rules  for  deciding  in  all  cases  what  captures  on 
land  or  water  sliall  l)e  lawful;  what  prizes  taken 
>l)all  be  divided  or  appropriated  Tlu-  Slate  had 
the  same  |>cwer  to  grant  letters  ol'  mar<|ue  in  time 
of  war.     (6ih  Article.) 

We  have  shown  that  Congress  did  not  have  the 
power  to  con(i:-cate  under  these  articles,  alihough 
they  had  the  power  to  make  rules  to  determine 
what  captures  on  land  or  water  should  be  legal 
throughout  the  United  States.  Then  I  say  it  is 
conclusive,  that  thi  power  to  make  rules  did  not 
necessarily  involve  the  power  of  confiscation,  for 
it  IS  not  nt-cessnrily  connected  willi  it.  There 
cannot  be  a  hij^her  or  stronger  argument  than  this. 
It  does  not  say  concerning  captures  on  land  and 
wa^er  simply,  but  it  says  "for  establishing  rulr-s  for 
deciding  in  all  cases  what  captures  shall  be  legal." 
It  IS  (lut  in  our  Consiiiuiion  as  I'ormerly  in  juxta- 
position to  granting  leiiers  of  marque  and  rei)ri- 
sal.  Jacolis  in  his  definition  of  the  word  capture, 
says  ii  is  particularly  applicable  to  privateers. 

In  Brown  rx.  United  States,  I  admit  that  Judge 
Marshall  did  say  that  it  was  this  power  to  make 
rules,  iJcc  ,  which  would  entitle  Coiigres.s  to  legis 
late  upon  the  subject.  That  was  his  position. 
Judge  iVlarshall  says,  "respecting  the  power  of 
Government,  no  doubt  is  entert. lined,  much  is  as 
sumed."  But  it  is  plain  from  the  context  that  he 
meant  by  Government  sovereignly,  and  never  eon 
sidered  the  question  where  that  sovereignty  was 
He  assumed  that  it  was  somewhere  in  the  Govern 
ment  ol  the  United  States,  and  selected  the  Con- 
g.-ess  as  the  depository.  I5ut  where  is  the  sove- 
reignty ?  That  is  the  question.  It  is  assumed  that 
captures  and  confiscations  are  the  same.  They 
never  were.  It  is  a  mistake.  They  are  confounded 
by  Judge  iVTarshall  and  it  is  his  greatest  blunder, 
and  when  thus  Judge   Story   has  overthrown  him. 

There  is  a  distinction  so  wide  that  we  need  go 
no  further  than  to  ask  whether  the  two  rights  or 
power  to  capture  and  confiscate  are  considered  and 
adjudged  in  the  same  jurisdiction  ?  A  prize  ques- 
tion must  be  made  in  a  prize  court.  But  where  is 
the  question  of  confiscation  to  be  made?  In  llie 
Court  of  common  law.  Confiscations  required  inqui. 
sition,  common  law  processes.  Here,  then,  you 
have  a  markeddistinction  thatthe  capture  waslo  be 
decided  in  one  Cou>-t  and  confiscation  in  another. 
Are  my  friends,  the  Receivers,  privateers  and  their 
commissions  letters  of  marque?  Are  they  making 
their  captures  and  bringing  their  prizes  into  Court? 
Such  a  proceeding  they  would  consider  monstrous. 
WhHtthey  seize  is  not  capture.  It  is  a  totally  and 
entirely  different  thing.  What  they  have  to  lake  is 
already  in  our  hands,  and  they  only  have  to  confis- 
cate, and  the  two  things  are  different — are  difTerenl 
in  the  |)roces»es.  It  was  affirmed  to  be  the  prerog- 
nlive  of  the  King  to  have  the  enemy's  property  put 
to  his  use  during  the  war,  which,  however,  Alvan- 
ly  says  never  was  exercised.  (3  Bos  &  Pall,  191, 
201.) 

This  assertion  bears  out  Levy  on  mercantile  law,| 
in  saying  that  there  has  never  been  a  case  where 
confiscation  ol  a  debt  has  actually  been  decided. | 
This  was  sought  to  be  done  by  process  of  common 
law  under  the  King's  prerogative  at  home — not  a 
belligerent  act,  although  flowing  from  the  war, 
but  not  itself  an  act  of  war.  ; 

But  arc  we  to  go  back  to  the  idea  that  the[ 
Receivers  are  acting  under  letters  of  marque  and 
reprisal,  to  go  rut  and  capture.  Have  you  noj 
rules  made  by  Congress  for  deciding  upon  captures?! 
If  there  are  none,  then  we  may  say  that  the  power! 
has  not  been  exercised.     If  such    rules  have  been! 


made,  why  not  apply  them  here,  if  capture  and  con- 
fiscation be  the  same? 

The  ideas  of  capture  and  confiscation  are  dis- 
tinct. Wfien  Judire  Marshall  saw  it  could  not  be 
the  war-making  power  which  authorized  confisca- 
tion— yet  unwilling  to  suppose  this  sovereign  power 
was  not  in  the  Government,  he  looked  somewhere 
else,  and  thought  he  found  it  in  the  power  to  make 
rules  concerning  captures. 

But  the  true  ground  of  our  objection  lies  deeper 
than  all  this  It  is  this— that  all  property  and  con- 
tracts within  the  States  are  absolutely  and  entirely 
under  the  power,  dominion  and  protection  of  the 
several  Stales,  and  in  no  wise  subject  to  the  power 
and  dominion  of  the  Confederate  States. 

Congress  has  no  power  to  ^determine  upon  what 
is  property  and  what  is  not,  and  who  shall  have  it 
or  who  shall  nofliave  it.  It  is  the  great  point  of 
our  contest.  Heretofore  we  have  maintained  it. — 
We  have  contended  that  Congress  cannot  meddle 
with  our  existence  or  with  our  properly.  The 
tenure  is  determiiicd  liy  us.  If  we  say  a  man  may 
hold  he  has  a  rfg'ht  lo  hold  it.  Congress  cannot 
say  to  us  aliens  shall  not  hold  this  or  that.  Ii  has 
no  power  to  meddle  with  or  control,  but  must  in  II8 
Courts  respect  those  rule's  and  rights  which  the 
Slates  give  as  to  title  and  the  validity  of  contract. 
If  this  power  is  assumed  then  have  you  put  anoth- 
er entering  wedge  to  drive  us  asunder  at  no  dis- 
tant day.  What  has  been  the  contest  all  this  time 
but  ihai  identical  question?  We  thought  we  had 
achieved  what  we  hoped  for.  Bat  now  when  the 
minds  ol  our  people  are  excited,  their  passions 
roused,  and  they  are  willing  to  go  with 
those  who  cry  confiscation,  in  this  stage 
of  feeling  they  may  quietly  submit  because  they 
look  upon  the  opponents  of  the  law  as  siding  wiih 
the  enemy.  Yet,  here,  I  say,  is  the  innovation 
which  must  lead  us  to  consolidation  again.  Who 
can  tell  how  often  wars  may  arise.  You  cannot 
give  to  this  Government  the  right  to  say  who  shall 
hold  properly  within  the  States.  The  Confederate 
Stales  are  not  responsible  for  State  contracts.  The 
States  are  responsible  as  sovereigns.  They  have 
undertaken  to  observe  them.  Why  should  not  the 
Congress  confiscate  these  also.  II  is  true  the  States 
have  delegated  to  the  Confederate  States  the  right 
to  take,  in  their  Courts, c,ognizan(;e  of  cases  between 
the  alien  and  the  citizen,  but  when  the  alien  comes 
into  Ihis  tribunal  he  has  to  make  his  case  under  tte 
laws  of  some  Slate.  It  is,  therefore,  not  captious 
or  verbal  criticism,  but  a  deep  and  thorough  view, 
founded  upon  the  nature  of  our  Government,  which 
makes  us  say  that  Congress  has  no  power  to  con- 
fisoate. 

We  now  come  to  the  second  point  made.  Thai 
the  Writ  is  not  authorized  by  the  Act. 

The  eighth  section  of  the  Act  enacts  '-That  the 
Clerk  of  the  Court  shall,  at  the  request  of  the  Re- 
ceiver, troin  time  to  time,  issue  Writs  of  Garnish- 
ment, directed  to  one  or  more  persons,  commanding 
ihem  to  appear  at  said  Court  and  lo  answer,  under 
oath,  what  juoperty  or  effects  of  any  alien  enemy 
he  had  at  the  service  of  ihe  process  or  since  has 
had,  under  his  possession  or  control,  belonging 
10,  or  held  for,  an  alien  enemy,"  &c. 

The  Writ  to  be  issued  is  not  a  Writ  new  to  the 
aw,  hut  is  a  Writ  supposed  to  be  already  known 
which  it  was  enough  lo  name.  It  is  a  Writ  of  Gar-* 
nishment — no  other  can  be  issued.  What  is  a  Writ 
of  Garnishment  ?  There  are  perhaps  some  varieties 
ofsuch  a  Writ,  but  all  have  come  to  us  from  the 
custom  of  London.  That  custom  is  as  follows: 
That  if  a  plaint   be    affirmed  in   London   before 


ARGUMENf  OF  xVlR.  EDWARD  McCRADY. 


41 


said  Court  against  any  person,  and  it  be  retnrned 
nihil;  it  the  plaintitT  will  surmise  that  another 
person  ^viihin  the  citv  is  a  debtor  to  the  defendani 
in  any  sum,  he  shall  have  garnishment  against  him 
to  warn  him  to  come  in  and  answer  whether  he  bei 
indebted  in  the  manner  alleged  by  the  other.'" 
(Locke  on  Attachment,  &e.,  6ih  Series,  Law  Li 
brary.) 

Our  own  law  of  Attachment  pursues  this  custom 
and  on  the  Writ  there  is  a  notice  endorsed  directed 
to  the  garnishee  directing  him  a*  to  his  duty,  which 
is  a  Garnishment.  But  in  several  of  the  States  ol 
the  Confederacy  there  is  a  Writ  distinctly  known 
as  a  Writ  of  Garnishment.  As  far  as  I  am  ac- 
quainted with  the  laws  of  these  States,  such  Writs 
are  issued  only  after  judsineiit.  But  in  all  of  them 
there  is  a  certain  plaintitl'  and  a  certain  defendant, 
and  the  garnishee  is  summoned  only  to  answer  a> 
to  what  effects  he  has  of  the  principal  debtor.  In 
the  Writs  to  which  I  am  objecting  there  is  a  certain 
plaintifl"  but  there  is  no  defendant  named.  The 
party  served  is  required  to  answer  what  effects  he 
has  of  any  alien  enemy,  without  nairtlngauy  one  iiil 
particular  as  an  alien  enemy.  Can  this  be  called 
a  Wrii  of  Garnishment  when  it  wants  themostj 
essential  feaiuie  of  such  a  Writ,  that  is,  the  naming, 
of  the  person  vi'hose  efl'ects  are  inquired  at'ter  ? 

Again,  every  Writ  of  Garnishment  is  intended  tOj 
be  the  foundation  of  some  judgment,  and  therefore 
must  contain  some  athrination,  upon  the  truth  of 
which  judgment  may  proceed.  Bui  here  is  a  Writ 
with  no  affirmation  except  that  of  the  passage  of  the 
Act  of  Sequestration.  How  can  there  be  judgment 
upon  such  a  Writ?  Can  it  then  be  said  in  any 
sense  to  be  a  Writ  of  Garnishment?  If  the  alle 
gation  of  alien  enemy  should  be  considered  a> 
equivalent  to  the  allegation  of  indebtedness,  still 
'  some  particular  alien  enemy  should  be  named,  and 
it  should  not  be  left  to  the  knowledge,  or  the  ignor- 
ance, or  the  malice  of  the  garnishee  to  divine  or 
designate  any  one  or  more  as  being  such.  But  it 
seems  to  be  supposed  that  the  generality  of  the 
language  of  the  section  authorizes  such  a  proceed-' 
ing.  By  what  canon  ol  interpretation  can  this  be 
maintained  ?  The  language  is  used  in  reference  to 
a  particular  Writ  well  known,  and  mu^t  be  con-l 
strued  accordingly.  The  generality  of  the  language 
18  clearly  only  to  cover  every  case,  so  that  the 
Writ  may  issue  in  auy  case,  but  certainly  not  tp 
make  each  Writ  cover  every  case,  or  any  number 
of  cases.  By  every  analogy  each  Writ  should 
name  some  particular  alien  enemy  whose  properly 
is  sought  after,  and  there  is  nothing  inconsistent 
with  tliis  in  the  words  of  the  Act. 

But  there  is  yet   another   more  specific  objection 
to  this  Writ.     It  commands   an  answer  to  each   oi 
several  questions    endorsed    upon    the    Writ,  and 
one  of  these    is    to  say  whether  you  have  been  in- 
debted to  any  alien  enemy  since  the  21st   May  last 
when  the  Act    requires  you    only  to    say  whether 
you  had  any   property  of  the   alien    enemy    at  the 
time  of  the  service  of  the  Writ  or    since.     Nay,  i' 
demands  more  even  than   this — requiring  the  party 
to  say  how  and  when  he  has  paid  any  debt  he  may 
have  owed  to    any   alien    enemy,    even    before  the 
service.     Surely  this  alone  should  quash  the  Writ 
Our  third  point  is:  That   Congress  has  no  power 
I-  40  authorize  such  a  Writ  as  this,  even  if  they  have 
'     the  power  to  sequestrate. 

Here  we  object  to  the  generality  of  this  Writ  in 

other  aspects.   First,  as  to  the  power  of  the  Receiver 

to  call  for  it;  next,  as  to  vagueness  and  generality 

of  its  terms.  i 

First,  as   to    the  power   of  the  Receiver.     He  is 


authorized  todemand  a  Writ  agaiust  every  member 
of  the  community,  without  sh  cau  or 
reason,  or  making  any  affirmation  concerning  him, 
to  bring  bim  into  Court  and  to  put  hi  n  upon  his 
oath.  Now,  1  insist  that  it  is  the  right  ot  every 
citizen  to  be  free  from  process  and  not  to  be 
brought  into  a  Court  of  Justice  to  answer  except 
upon  some  allegation  of  debt  or  duty  to  be  render- 
ed or  discharged.  This  was  one  ot'  the  cherished 
prerogatives  of  the  Star  Chamber  to  put  any  man 
upon  his  oath  to  answer  concerning  his  own  or 
others'  affairs,  without  any  allegation  against  him 
or  any  other.  The  Court  was  utterly  abolished  in 
England,  chiefly  on  account  of  that  odious  preroga- 
tive. The  prerogative  was  claimed  as  necessary 
to  the  safety  ot  the  Commonwealth  to  ferret  out 
conspiracies  and  treachery.  (Col.  Jur.  Hudson's 
Star  Chamber,  part  Sec.) 

Here,  not  for  the  safety  of  the  State,  but  for  the 
mere  purpose  of  raising  a  fund  for  the  indemnifi- 
caiionof  some  of  our  citizens  whose  property  has 
been  seized  by  the  I'nited  Stntes,  we  aim  seve- 
ral of  our  fellow-citizens  with  such  a  tremendous 
power.  To  summon  a  whole  community  into  a 
Court  of  Justice  without  the  slightest  allegation  or 
afhrmaiion  against  or  ccnceriiing  any  one  of  them. 
Is  it  nothing  to  be  hauled  into  Court  ?  To  be 
forced  upon  oath  to  expurgate  ones  self,  before 
even  suspicioa  of  any  kind  has  been  raised  against 
him  ?  Are  solemn  oaths  mere  pastimes,  and  at- 
tendance on  Courts  pleasant  occupation  1  Is  it  not 
in  truih  a  most  onerous  burthen,  unreasonably 
imposed  upon  our  people  to  assemble  them  all  in 
the  Court  House  ? 

Next,  as  to  the  vagueness  and  generality  ol 
the  Writ.  Is  not  this  generality  and  vague- 
ness the  very  objection  urged  against  Writs 
of  assistance  which  empowered  the  officers  of  the 
customs  to  search  for  uncustomed  goods  in  any 
house  without  specially  describing  the  particular 
hoose  ?  Our  revolutionary  forefathers  held  this 
to  be  one  of  the  highest  acts  of  tyranny.  (Free- 
nian's  Letter.  See  Doc.  History  of  the  Revolu- 
tion. Gibbes'  vol.  pp.  15,  IS  and  21.  This  is  nothing 
'more  nor  less  than  a  general  Writ  to  search  for  the 
property  of  alien  enemies  everywhere. 

Was  not  this,  also,  the  same  objection  which 
was  made  to  those  warrants  issued  by  the  Secre- 
tary of  State  in  accordance  with  the  very  ancient 
usage,  the  abolition  of  which  was  the  result  of 
those  ever  memorable  trials  reported  in  2  Wilson, 
p.  205  j  Burrows,  p  1742,  and  Ist  Blackstone,  p. 
5-55.  Let  us  not  forget  the  noble  language  of 
Lord  Camden,  when  he  so  resolutely  vindicated 
the  rights  of  Englishmen.  On  the  trial  alnisipriua 
111  the  case  of  Huckle  vs.  Mooney,  he  said  '"if  the 
o'her  Judges  and  the  highest  authority  in  the 
Kingdom,  the  House  of  Peers,  should  pronounce 
my  opinion  erroneous,  I  submit  as  will  become  me 
and  kiss  the  rod — but  I  must  say  I  shall  always 
consider  it  as  a  rod  of  iron  lor  the  chastisement  ot 
ilie  people  of  Great  Britain."  And  again,  on  the 
motion  lor  a  new  trial,  he  said  "to  enter  a  man's 
house  by  virtue  of  a  va/neless  warrant,  (lor 
although  the  ofleuce  and  objects  of  search  were 
particularly  described  in  the  warrant,  the  offender 
was  not  named,)  in  order  to  procure  evidevce,  is 
vvorse  than  the  Spanish  Inquisition — a  law  under 
which  no  Englishman  could  wish  to  live  an  hour. 
It  IS  a  daring  public  attempt  upon  the  liberty  of  the 
subject  in  violation  of  Magi:a  Ckarta.  (2  Wils. 
20') )  Upon  the  Writ  of  Error  Lord  Mansfield 
said  "usage  has  great  weight,  but  will  not  hold 
against  clear  and  solid  principles    of    law."     Wil- 


42 


THE  SEQUESTRATION  ACf. 


n,ot,  J. ''I  have  not  the  least  doubt,  nor  ever  had,j'clau8e  of  the  Constitution  can  we  refer  for  the    au- 

that'these  warrants  are  illegal  and  void."  Yates— .{thority  to  make  a  Writ  so  utterly  condemned  by 
"go  totally  bad  that  an  u<age,  even  from  the;  our  history  as  tyranicaU  and  against  which  we 
foundation  of  Rome  ilself,  would  not  make  them  insist  the  twelfth  clause  of  the  first  article  of  the 
good."  And  vet  we  are  now  called  upon  to  submitto  Constitution  was  intended  as  a  prohibition  and  pro- 
a  Writ,  general  in  like  kind,  for  the  procurement  of  tection.  We  must  resist  urail  resistance  becomes 
evidence  without  any  usage  in  its  behalf,  in  the  utterly  vain,  and  then  will  have  to  consider  the 
day  of  our  enfranchisement  from  oppression  and  only  choice  left  us,  between  submission  and  the 
the  heyday  of  our  bright  hopes  of  liberty.    To  whatjjprison. 


ARGUMENT  OF  MR.  MILES,  DISTRICT  ATTOR^y^EY, 


IN  REPLY  TO  :mR.  McCKADY. 


Mr.  Miles  said — That  after  the  very  earnest  and 
able  speech  ol  his  esteemed  friend,  he  would  have 
to  place  him  in  a  third  category  of  the  opponents, 
of  the  Act.  He  thought  opposition  to  this  act  grew 
first  out  of  tenderness  to  the  alien  enemy,  which, 
however  creditable  to  the  feelings,  i:f  not  warranted 
by  law.  These  either  do  not  acknowledge,  or 
cannot  realize,  the  cardinal  nrtaxim  which  pervades 
the  whole  system  of  International  Law,  thai  the 
opinions  and  feelings  of  the  individual  citizen  are, 
so  far  as  foreign  States  are  concerned,  bound  up 
in  the  declarations  and  acts  of  the  Government  of 
his  country — and  that  every  citizen  must,  so  far  as 
the  law  is  concerned,  regard  every  citizen  of  the 
belligerent  country  as  /its  enemy  because  the 
eiitmy  of  his  country. 

The  second  class  consists- of  those,  who  having 
no  such  sympathy,  do  not  object  to  the  measi  re  of 
retaliation  which  has  been  adopted;  who,  it  may 
be,  have  been  among  those  loudest  in  their  clamor? 
for  the  Government  to  exercise  this  power  for  the 
indemnity  of  its  injured'  and  outraged  citizens 
These  persons  did  not  find  their  moral  sense  at  all 
shocked  by  the  passage  of  such  a  law — but  vindi- 
cated its  policy  and  propriety,  uniM  they  formed 
the  conclusion  that  the  operation  of  the  law  upon 
themselves  would  be  productive  o(  disappointmt  nt 
or  inconvenience;  disappointment  to  those  who 
believed  that  the  war  had  absolved  them  from 
their  debts  to  citizens  of  the  United  States,  and 
who  were  startled  at  finding  that  these  debts  were 
not  repudiated  by  the  Government,  but  were  only 
taken  from  our  enemies  for  the  benefit  of  our  own 
citizens;  or  inconvenience  in  the  mode  in  which 
the  law  might  be  administered.  Many  of  these, 
under  the  influence  of  what  they  assume  to  be 
\hfir  own  interests,  have  changed  ground,  and 
Irom  a  defence  of  the  measure  as  a  beneficent  act 
of  our  Government  to  its  citizens,  have  been 
induced  to  assail  the  first  provisions  of  the  law. 
then  the  law  itself,  then  the  Congress  who  passed 
the  law;  and  some  have  perhaps  gone  further  and 
involved  in  a  common  reproach,  if  not  denuncia- 
tion, all  the  defenders  of  the  law  and  the  Govern- 
ment. 

The  oppofilion  of  the  counsel  was  not  referable 
to  either  of  these  grounds.  He  believed  that  his 
objections  were  taken  with  a  sincere  conviction  of 
right  and  duly,  and  in  no  captious  spirit.  But  he 
thought  his  opposition  arose  from  his  constitutional 
jealousy  of  power,  which  made  him  watch  closely 
every  seeming  encroachment  upon  "common 
right."  He  thought  he  paid  his  friend  a  high  com- 
pliment when  he  said  this.  His  motives  and  con- 
duct were  in  accordance  with  his  character  as  a 
citizen  and  as  a  lawyer.  He  had  no  doubt  thai 
kis  friend  had  well  weighed  the  great  responsibility 
of  his  action  in  this  matter — had  fully  realized  tiie 
weight  01  the  influence  of  his  personal  and  pro- 
teHSioual  reputation  which  he  had  cast  in  the  scale 


in  which  ihis  important  action  of  the  Government 
is  now  being  weighed.  His  example  would  not 
only  influence  those  who  looked  up  to  him  with 
respect,  but  would  also  shelter  those  whose  oppo- 
sition, or  evasion  of  the  law,  would  spring  trom 
motives  less  pure  and  unselfish  than  his  own. 

Having  so  recently  argued  at  length  the  ques- 
tions involved  in  this  motion,  he  proposed  to  con- 
fine himself  to  the  production  of  a  lew  authorities 
in  addition  to  those  previously  cited  by  him,  and  to 
a  briel  reply  to  the  arguments  ol  the  counsel  just 
concluded. 

He  would  follow  the  same  order  as  he  had  pur- 
sued in  his  previous  argument,  and  arrange  his  re- 
marks under  the  three  heads : 

First.  The  sovereign  right  to  confiscate  all 
properly  of  alien  enemies,  including  debts  within 
the  territorial  limits  of  the  belligerent  State. 

Second.  The  power  of  Congress  to  exercise 
this  right  under  the  Constitution. 

Third.  The  constitutionality  and  lesality  of  the 
mode  of  procedure  prescribed  by  Congress  to 
carry  out  the  power. 

On  the  first  point  he  cited  the  following  addition- 
al authorities  : 

As  to  the  principle  at  the  common  law,  ihat 
"goods  which  belong  to  an  alien  enemy  any  body 
may  seize  to  his  own  use."  (Murrough  vx.  Com- 
myns,  2d    Wilsons  Rep.,  p.  213.) 

Bynkershoeck's  Law  of  War,  DuPonceau's 
Translation,  p.  52,  el.  seq.,  where  he  broadly 
asserts  the  right,  and  shows  that  it  extends 
as  well  to  "actions  and  credits'  as  to  langi- 
ble  property,  there  being  no  distinction  in 
reason  between  ihem  ;  and,  also,  that  in  practice 
I  hey  have  been  frequently  exacted  In  particular 
he  cited  ihe  statement  in  regard  to  the  provisions 
in  the  war  between  France  and  Holland  in  16.57, 
which  are  strikingly  similar  to  our  own,  hoth  in  the 
object  proposed  and  the  modes  of  procedure  pre- 
scribed. 

Lee  OP,  Captures,  cited  in  3  Dallas,  228, 
lays  down  the  same  rule  and  shows  that  in  reason 
and  practice  ii  extends  to  debts  (which  he  classes 
with  '^rights  and  credits,"  as  in  this  Act,)  'taken 
hold  of"  during  the  war.  This  author  is,  probably, 
Sir  George  Lee.  the  English  Judge  who  wrote  the 
answer  to  the  memorial  of  the  King  of  Prussia  in 
relation  to  the  Silesian  loan.  (See  Prelace  to 
Phillimore  on  Inter.  Law.) 

The  English  answer  to  the  memorial  of  the  King 
of  Prussia,  in  relation  to  the  Silesian  loan,  aid  the 
letter  of  the  Duke  of  Newcastle  to  Mr.  Mitchell 
accompanving  it  to  be  found  in  1  Collectanea  Juri- 
dica,  London  edition,  131,  154,  by  which  it  will  ap« 
pear  that  the  action  of  the  King  of  Prussia  iu 
withholding  the  public  debt  due  to  citizens  of  the 
enemy's  country,  is  rested  on  the  ground  oJ  a 
violation  of  his  honor,  public  and  private,  which, 
under  the  peculiar  circumstances  of  the  case,  was 


44 


THE  SEQUESTRATION   ACT. 


pledged  for  payment  of  this  debt,  and  there  is  nolla  corporation.  They  possess  the  power  of  making 
question  made  of  the  sovereign  right  to  confiscate  iwar  and  peace  in  their  own  name,  but  as  delegates 
even  the   public  debt.  |of  their  sovereifin;  and  this  right  is  a  consequence 

Poison's  Law  of  Nations,  published  in   England  jof  the  power  granted  by  the  isiate  to  the  Company 
in  1S4S,  at  page  39,  announces  the  right  to  coiifi>cate;!over  a  particular  territory.  (3  Phill.,  140.) 


property   of   enemies    as    lounded    on    the 
princi|)le  as  the  right  to  seize  liis  person. 

Phillimore  is  the  latest  English  Treati.^e  on 
InternationnI  Law,  the  third  volume  being 
published  in  1S.57.  He  recognizes  the  principle  as 
laid  down  by  Kent,  Story  and  Wheaton,viz:  that 
"When  hostilities  have  begun,  the  person  of  the 
enemy  is,  strictly  speaking,  liable  to  seizure,  and 
his  property  to  confiscation,"  3  Phill.,  IIG;  and  that 
"the  right  of  confiscating  r^A<*  of  the  enemy  is  a 
corollary  to  the  right  of  confiscating  his  property 
lb.,  132.  He  vindicates  fully  the  exi-tence  ol  the 
Tiglil,  although  he  shows  that  the  modern  practice 
of  nations  has  been  to  forbear  its  exercise,  and  he 
elaborately  reviews  the  decision  of  Lord  EUenbo 
rough  in  Wolff  vs.  Oxholm,  6  Maul  &  Selwyn,  100, 
inipungning  the  right.  He  shows  that  the  autho 
rities  cited  by  Lord  Ellenborough  do  not  warrant 
his  conclu.-ion,  and  that  the  sounder  conclusions  oJ 
the  American,  Dutch,  and  German  Courts  were  not 
cited  in  the  argument  or  the  opinion.  "That  the 
question  for  Iniernaiional  Jurists  who  review  this 
judgment,  is  whether  the  practice  o(  nations  was 
so  rooted  and  confirmed  in  opposition  to  the  stnct 
right  ns  to  have  superseded  it.  Whether  this  was 
one  of  those  cases  in  which  a  usage,  which  had  its 
origin  in  the  precarious  conces!^ion  of  comity,  had 
become  trans/erred,  through  uninterrupted  exer 
eise  and  the  lapse  of  time,  into  the  certain  domain 
of  right.  It  was  the  decision  of  a  single  Court  not 
much  accustomed  to  deal  with  questions  of  Inters 
national  Law,  and  perhaps  if  the  occasion  should 
present  itself,  the  decision  of  Lord  Ellenborough 
might  be  reversed  in  England."     lb.,  p.  721. 

The  cases  which  arose  out  of  the  payments 
made  to  Napoleon  by  the  debtors  of  the  Prince  o( 
Hesse-Cnssel,  cited  in  the  Sih  chapter  of  Philli- 
more, p.  70S,  will  further  illustrate  this  question 
There  the  question  was  as  to  the  validity  ot  the 
discharge  given  by  Napoleon  after  the  conquest  o( 
the  country,  to  the  debtors  of  the  Prince  who  paid 
to  him,  pleaded  to  suits  by  the  Prince  after  his 
resioration.  The  question  went  through  the  vari- 
ous Universities  of  Germany,  which  it  seems  pos- 
sess judicial  powers  in  questions  which  comern 
the  interests  of  two  or  more  German  States.  The 
final  decision  was  that  all  the  debts,  whether  the 
whule  sum  had  been  paid  or  not,  for  which  dis- 
charges in  full  had  been  given  by  Napoleon,  were 
validly  and  efll'ctually  paid. 

If  the  payment  to  a  conqueror  is  a  valid  dis- 
chaige  to  a  dtthior,  a  fortiuri,  the  compulsory  pay- 
ment by  citizens  to  their  own  sovereign,  of  debts 
due  to  alien  enemies  m'ist  be  held  a  valid  discharge 
in  all  Courts  recognizing  the  authority  ofthe  Law 
of  Nations. 

These  authorities  were,  with  those  previously 
cited,  he  thought  a  sufficient  answer  to  his  friend's 
arguments  on  this  head. 

Un    the  second    point,  as    to   the    constitutional 
power  of  Congress  to  exercise  the  right  of  confis 
eating  an  enemy's  property,  he  pro|)i)Se(l  to  do  Hilled 
more  than  reply    to    sornea  of    the  most  promiiieiiij 
arguments  adduced  on  the  oiher  side 


So  it  has  been  held  in  South  Carolina  that  the 
Slate  can  delegate  its  sovereign  right  of  eminent 
domain  to  a  Rail  Road  Corporation,  which  is  cer- 
tainly carrying  the  doctrine  to  the  extremest 
verge. 

Under  our  system  of  sovereign  States,  united  in 
a  Confederation  with  a  General  Government  which 
operates  directly  upon  the  persons  and  property 
of  the  citizens  ofthe  States,  (which  is  the  essential 
feature  of  a  Government  as  distinguished  (roin  a 
league,)  upon  all  such  matters  as  are  intrusted  to 
the  common  agent,  the  idea  of  delegating  to  an 
agent  the  exercise  of  certain  sovereign  rights  is 
peculiarly  familiar.  Under  the  Constitunoa  the 
exercise  of  many  sovereign  rights  is  given  to  the 
general  agent,  and  lorbidden  to  the  States.  With- 
out enumerating  them  it  is  sufficient  to  say  that 
the  exercise  of  all  the  attributes  ©'"sovereignty,  so 
far  as  a  foreign  nation  is  concerned,  is  entrusted  to 
the  common  agent  of  all  the  States.  The  several 
States  are  only  known  to  foreign  nations  through 
this  agency.  The  most  important  of  all  these 
attributes  of  sovereignty  is  the  power  of  making 
war  and  peace  ;  and  in  close  connection,  indeed  a 
necessary  part  of  it,  is  the  power  of  making 
treaties. 

The  power  to  make  war  certainly  involves  the 
power  to  call  into  service  the  citizens  of  the  States, 
and  when  received  into  service  the  power  of  life 
and  death  is  not  even  controlled  by  the  constitu- 
tional guarantees  as  to  the  modes  of  trial.  Any 
citizen  in  the  service  ofthe  Confederate  States  in 
time  of  war  is  liable  to  be  shot  at  any  lime  by 
sentence  (  fa  court  martial. 

The  property  of  the  citizens  of  the  States  may, 
in  like  manner,  be  subject  to  forfeiture  or  execu- 
tion under  the  laws  o(  Congress — the  common 
agent  of  all.  If,  then,  this  absoluie  power  overthe 
life,  liberty  and  properly  of  the  citizens  of  the 
Stales  may,  in  certain  cases,  be  exercised  by  the 
General  Government  of  all,  which  is  likewise  the 
Goberiiment  ofeach,  is  it  surprising  that  we  should 
find  a  power  delegated  tothe  same  agency  overthe 
the  persons  and  property  of  the  common  enemies 
of  all  found  within  the  territorial  limits  of  any  one 
State?  Would  we  not  naturally  look  for  this 
power  over  the  |)ersons  and  property  of  enemies, 
to  be  vested  in  the  same  agency  intrusted  with 
ihe  power  to  declare  war,  when  sucli  power  is 
never  exercised  except  alter  and  in  consequence 
of  war?  When  it  is  said  that  the  power  to  con- 
fiscate enemies  property  is  a  necessary  incident  ol 
the  war-making  power,  it  is  meant  hat  the  power 
when  it  is  exercised,  is  exercised  in  conjunction 
with,  and  in  subordination  to,  the  war-making 
power.  Not  that  it  is  a  necessary  and  universal 
concomitant  of  war.  The  power  to  put  to  death 
innocent  prisoners  in  retaliation  for  similar  act*  ol 
the  enemy,  is  certainly  an  incident  of  war,  which 
can  only  arise  during  a  war,  and  yet  wars  may  be, 
and  have  been,  waged  without  having  to  resort  to 
it.  But  there  is  no  such  thing  as  the  loss  of  a 
sovereign  right  by  novi-tcser.  The  Congress  ofthe 
Confederate  Slates   have    passed  an  Act  giving  to 


In  the  first  place  it  is,  as  has  just  been  stated,  a Kthe  President  the  right  to  execute   this  power  if  it 
familiar  idea  that  the   right    to  «.r«rc(.!.e  «  .wvere/^^lshould  l)ecome  necessary.     Can  this  power  be  dis- 
■power  may   be  di-legated,  even   to   a  subject.     Tiie, jtingui^bed    Irom    the      power    to    confi.scate    the 
case  o(  the  East  India  Company  afl.rds   a  remai  k-l'eneiny's  properly? 
able  illustration  of  sovereign  [lOwers  entrusled  to       ^     "   ""'  '"^       "■" 


Sevt-ral  Treeties  of  the  United  States  have  been 


ARGUMENT  OF  MR.  MILES,   IN  REPLY  TO  MR.  MrCRADY.       45 


cited,  and  particularly  the  treaty  with  Great  Britain,  Brown  vs.  United  Stales.)  And  this  exposition 
in  which  it  is  expressly  stipulated  that  in  the  event  of  the  distribuiion  of  powers  under  the  Consiitii- 
of  a  war  between  the  two  countries  the  property  lion  has  been  always  accepted,  not  only  in  this 
and  dtbts  of  each  other's  citizens  s-hall  notbeconfis  country,  but  abroad.  (See  1  Phill.  15-29;  3  Phill  , 
Gated.     That  sucii  stipulations  have  been  made  in  23.) 

treaties  shows  two  things.  First,  it  is  an  admission  In  conclusion,  on  this  point,  he  said,  that  the 
that  ihe  right  to  confiscate  exists,  since  it  is  an  legitimate  conclusion  to  which  the  Jirgnnient  on 
express  agreement  not  to  exercise  the  right;  and,:  the  other  side  leads  is,  that  the  Consiiiutioii  limits 
next,  it  is  an  admission  of  the  right  of  the  General  Congress  to  ihe  right  to  declare  war,  and  denies  it 
Government  to  control  the  action  of  the  Slates  in  power  to  carry  on  the  war,  except  by  the  employ- 
this  particular.  How  can  Con?ress,  (or  still  less,  ment  of  such  agencies  as  are  exp'es»ly  speciiied  in 
the  President  and  Senate)  have  the  power  to  make  the  Constitution  A  very  little  rellection  and  still 
a  treaty  which  shall  override  the  inconsistent  laws  Jess  experience,  will  show  that  there  are  agencies 
of  the  States,  unless  by  virtue  of  their  auihoriiylnecessarily  employed  every  day  and  hour  in  the 
over  the    subject-matter?      Congress    could    not  [prosecution  of  the  war  which    could  not  be  aniici 


make  a  stipulation  in  a  treaty  that  slavery  shall  not 
exist,  and  thereby  override  the  State  laws  estab- 
lishing slavery,  because  this  \\'ould  be  contrary  to 
the  Constitution  Irom  which  they  derive  their  ex- 
istence. If  it  is  admitted  that  it  is  competent  (or 
Congress  to  make  a  treaty  stipulation  that  confis- 
cation of  enemies  property  shall  not  take  place,  it 
must  be  conceded  that  they  also  have  the  power  to 
exercise  the  right  which    they  slipulate  to  forbear. 

The  argument  that  I  he  powers  of  Congress  under 
the  Articles  of  Confederation  over  this  matter  were 
tl^e  same  as  our  Congress,  and  that  as  tkei/  did  not 
possess  the  power  t/iis  Congress  does  not, admits  of 
several  answers.  First,  it  is  not  conceded  that  llie 
Congress  under  the  Articles  of  Confederation  did 
not  possess  the  power  simply,  because  they  did  not 
exercise  it.  They  did  not  exercise  many  powers 
which  they  clearly  possessed,  because  they  did  not 
possess  the  necessary  machinery.  There  were  no 
Courts  establisht-d  under  the  Articles  of  Confed- 
eration. Congress  did,  under  the  Articles  of  Con- 
federation, expressly  claim  "to  be  invested  with 
the  supreme  sovereign  power  of  war  and  peace; 
that  the  power  of  executing  the  Law  of  Nations  i> 
essential  to  the  sovereign  supreme  power  of  war 
nnd  peace;  that  the  legality  of  all  captures  on  the 
highstas  must  be  determined  by  the  Law  of  Na 
tions,  and  that  the  authority  ullimaiely  and  finally 
to  decide  on  all  matters  and  questions  touching  the 
Law  of  Nations  docs  reside  and  is  vested  in  the 
sovereign  supreme  power  of  war  and  peace.' 
(Resolutions  of  Congress,  March  6,  1779  )  And  in 
pursuance  of  this  power  did  direct  captures  of  ene- 
mies property  on  the  high  seas  to  be  made.  And 
yet  they  recomm-efided  to  the  several  States  to  es- 
tablish tribunals  for  the  trial  of  prize  causes,  re- 
serving to  themselves  a  right  of  control  by  appeal 
from  these  tribunals.  And  the  Supreme  Court  ofi 
the  United  Stales  sustained  the  right  so  claimed 
(See  Penhallow  vs.  Uoane's  Amors,  3  Dallas  R.,  S3  ) 
So  the  Congress  recommended  to  the  States  to  pas> 
laws^o  punish  infractions  of  the  Laws  of  Nations, 
and  to  confiscate  the  property  of  alien  enemies 
within  their  territorial  limits,  and  the  States,  in 
express  pursuance  of  this  recommendation,  did 
confiscate  the  property  to  alleviate  and  lessen  the 
burdens  and  expensesof  the  war  which  were  borne 
by  the  States. 

But  if  the  Congress  of  the  States  did  not,  und 


pated  and  provided  for  by  Congress,  anit  still  less 
by  the  Constitution.  They  are  necessary  inherents 
of  the  war  iiselt.  And  a  construction  that  would 
thus  paralyze  our  energies  cannot  be  the  true  one. 
j  He  had  occupied  so  much  longer  time  on  these 
points  than  he  had  intended,  and  the  usual  hour  of 
adjournment  having  arrived,  he  could  not  follow  in 
detail  the  arguments  urged  against  the  modes  of 
procedure  under  the  Act. 

He  could  only  reply  generally,  that  as  the  Act 
declHPes  the  property  of  all  alien  enemies  to  be,  al- 
ready .seq/teslrated,  the  citizen  who  holds  such  pro- 
perly, holds  that  to  the  possession  of  which  the  Gov- 
■rnmeiit  is  entitled.  The  procedure  is  co-extensive 
with  the  right.  The  Government  is  entitled  to  all 
such  property,  and  calU  \ipon  each  and  every 
citizen  to  give  up  any  und  all  of  it  in  his  posses- 
sion. 

It  seems  to  be  conceded  that  a  Writ  of  Garnish- 
ment might  legally  issue  calling  upon  a  citizen  to 
give  up  the  property  of  a  particular  alien  enemy 
specified  ;  (as  lias  been  done  in  several  cases') 
then  why  not  call  upon  him  for  a// alien  enemies' 
property?  The  right  of  the  Government  is  the  same 
in  one  case  as  the  other. 

He  could  not  see  the  justice  of  the  constant 
allusions  to  the  Siar  Chamber  and  general  war- 
rants. There  is  no  offence  charged  by  this  proceed- 
ing against  any  citizen.  It  is  not  declared  a  crime 
nor  is  it  made  penal  to  owe  a  debt  to  an  alien 
enemy,  or  to  hold  his  property.  It  simply  calls  on 
him  to  give  up  that  which  is  not  his,  accompanied 
by  the  express  declaration  that  all  his  rights  in  the 
thing  shall  be  fully  guarded.  The  only  penalty 
(iroclaimed,  is  against  one  who  wilfully  withholds 
property,  and  thus  to  be  inflicted  only  upon  indict- 
ment and  conviction  as  in  any  other  misdemeanor. 
The  oath  is  propounded  not  by  the  Receiver  but 
by  the  Court,  as  in  any  other  case.  Every  citizen 
is  required  by  the  law  of  this  State  to  swear  to  the 
truth  of  his  tax  return.  All  judicial  proceedings 
are  based  unlimately  upon  the  sanction  of  an  oath. 

Note — It  was  inadvertently  omitted  in  the  ar- 
gument to  point  out  the  fact  that  ihe  Congress, 
under  the  Provisional  Government,  have  power 
jby  a  vote  of  two  thirds,    lo   alter  the  Constitution, 

(Art.  5, )  and,  therefore,    might,    if  this    Se- 

ques'ration  Act   was   declared   to    l)e    unccnstitu- 


the  Articles  of  Confederation,  possess  this  power,   tional,  amend  the  Constitution  by  the   insertion   of 


they  certainly  did  under  the  Constitution,  as 
shown  by  the  antecedent  arguments  derived 
from  the  reason  of  the  thing,  as  well  as  by  the 
authority  of  the  two  cases  decided  by  the  Supreme 
Court  of  the  United  Slates.     (Ware  vs.  Hyllon  aiul 


an  express  power  to  Congress  to  confiscate  pro- 
perty and  debts  of  alien  enemies,  and  then  re-enact 
the  law.  The  power  of  the  Congress  under  the 
Provision;  1  Constitution  is  certainly  not  less  than 
under  the  Permanent  Constilution. 


ARGUMENT  OF  MR.  EDWARD  M^CRADY, 

IX  REPLY  TO    MR.  C.  R.  MILES. 


The  District  Attorney  deduces  an  argument  from, 
the  power  to  make  treaties.  He  says,  under  this 
power  the  United  States  .-surrendered  the  right  oi' 
conlisc-ation  on  several  occasions,  and  thence  infers 
the  right  to  conlJscale  must  liave  been  granted  in 
the  Constitution  of  the  United  States,  or  the  United 
Statescould  not  have  surrendered  it.  Ifthe  treaty- 
making  power  is  the  grant  of  this  right  to  confis- 
cate, then  it  could  only  be  exercised  in  the  man- 
ner in  which  that  power  was  to  be  exercised,  that 
is,  by  the  President  and  two  thirds  of  the  Senate. 
But  this  was  not  the  manner  in  which  the  power 
to  declare  war  and  make  rules  concerning  cap» 
lures  was  to  be  exercised.  In  the  Senate  the 
States  were  equally  represented  and  it  required 
two-thirds  to  make  a  treaty.  War  might  be  de 
clared  and  rules  for  captures  made  by  a  bare 
majority  of  Congress. 

As  to  the  inconsistency,  there  is  none.  The 
States  have  granted  to  a  certain  agency  the  power 
to  make  treaties.  It  was  an  agency  distinct  from 
the  law-making  power,  an  agency  in  which  each 
State  had  equal  power.  They  constituted  the 
President  and  two-thirds  of  the  Senate  their  pleni- 
potentiaries, who,  as  such,  might  grant  much  that 
the  States  had  reserved,  and  not  granted  to  the 
United  States.  It  is  difficult  to  set  any  limit  to  the 
treaty-making  power.  As  to  the  inconvenience 
Is  convenience  to  be  the  rule  by  which  the  Consti- 
tution is  to  be  construed  f  But  the  inconvenience 
is  inherent  in  the  matter.  Wherever  the  right  of 
confiscation  resides,  when  exercised,  the  treaty 
making  power  may  have  to  undo  it.  Even  granting 
it  to  Congress,  the  two  powers  are  in  difl'erent 
bodies,  which  may  differ  especially  after  the  ellliix 
of  a  time,  in  consequence  of  the  events  of  a  war 
bo  much  for  the  treaty  making  power. 

Next:  The  District  Attorney  contends  that    the 
subject    ofwar  or  subject-matter  of  war  is  granted 


to  Congress,  and,  therefore,  all  incidents  accom- 
pany it.  This  is  consolidation  in  its  old  form  pre- 
cisely. So  Judge  Story  reasoned  and  concluded 
that  the  power  of  confiscation  belonged  to  the 
President.  It  was  precisely  by  this  process  ot 
reasoning  that  the  power  to  lay  and  collect  duties, 
&c.,  for  revenue,  was  converted  into  a  power  to 
foster  manufactures  and  various  other  interests. 
It  is  the  process  by  which  all  Con^titntions  may 
and  must  be  undermined  and  subverted,  from  the 
very  nature  of  things.  The  enumeration  of  so 
many  diflerent  powers,  (generally  included  in  the 
war  power,)  show.<  conclu.sively  that  such  reason- 
ing never  could  have  been  intended  to  be  applica- 
ble to  that.  Then,  again,  the  District  Attorney 
maintains  that  the  power  over  the  propert/  in  the 
States  is  involved  in  the  grant  of  judicial  power  to 
the  Confederate  States.  The  judicial  power  is 
only  that  of  the  exposition  of  the  laws  which  the 
Slates  impose  upon  property  and  contracts.  The 
power  to  sell,  under  judicial  sentence,  is  subject 
to  the  law  of  property  in  the  States,  and  not  above 
it. 

The  last  position  of  the  District  Attorney  which 
[  shall  notice,  is  this.  That  the  Act  of  Sequestra- 
lion  transfers  the  property  of  alien  enemies  to  the 
Confederate  States,  and  this  trans'er  authorizes 
this  general  Writ.  Here  is  a  prerogative  never 
before  claimed  by  any  prince,  potentate  or  State, 
repugnant  to  all  sense  of  common  right  or  natu- 
ral liberty.  That  the  Confederate  States,  because 
it  owns  property  somewhere  in  a  State  or  C  ty, 
but  does  not  know  where  to  find  it,  may  put  the 
whole  community  on  oath  to  say  where  it  is.  If  a 
bundle  of  its  Bonds  ha|)pens  to  be  lost  in  a  Stale 
or  City,  every  citizen  in  it  may  be  required  to 
deny  on  oaih  any  knowledge  respecting  them.  I 
deny  so  monstrous  a  proposition.  But  it  shows 
precisely  what  is  the  purpose  and  object  of  this 
general  Writ,  and  therefore  condemns  it. 


THE  CONSTITUTIONALITY  OF  THE  SEQUESTRATION  ACT 
CONSIDERED  AND  AFFIRMED. 


IN  THE  CONFEDERATE  COURT. 

SOUTH    CAROLINA    DISTRICT. 


The  Confederate  Slatet  vs  James  L  Petigrii — Writ  of  Garnishment  under  the  Seqnestratton  Act. 
The  Same  vs.   Nelson  Mttchell—Writ    of  Garnishment  undtr  the  Sequestration  Act. 
The  Same  vs.    WiUtam  Whaley — Writ  of  Garni.ihment  under  the  SequestraUon  AcU 


MAGRATH— J. 

The  queslions  raised  in  ihese  jcases  have  been 
tliscussetl  with  much  ability;  and  in  the  decision 
which  I  am  now  to  render,  I  have  been  assisted 
by  the  labor  and  impresstxl  by  the  zea(,  exhibited 
■in  the  argiuii<rnt  addressed  to  the  (?ourt.  While  I 
entertain  no  doubt  that  I  have  reached  a  conclu 
sion  altogether  reconcilable  with,  and  supported 
by  authority  and  reason;  it  is  nevertheless  agreea 
ble  to  me  to  have  the  assurance,  that  if  I  have' 
erred  in  that  conclusion,  It  is  competent  for  the  par- 
ties to  reler  to  another  tribunal  the  correctness  of) 
this  decision. 

In  each  of  the  cases  which  have  been  argued' 
before  me,  exception  by  way  of  demurrer  has, 
been  taken  to  the  Writ  of  Garnishment;  which 
by  the  Sib  section  of  the  Act  of  the  Confederate 
Congress  for  the  sequestration  of  the  properly, 
estates  and  effects  of  alien  enemies;  a  Receiver  is 
authorized  to  ask,  and  the  Clerk  of  the  Court  is 
directed  lo  issue. 

And  the  exception  is  rested  chiefly  upon  three 
propositions : 

1.  That  the  principle  of  sequestration  adopted 
by  the  Act  of  the  Confederate  Congress,  is  not  in 
consistency  with  the  principles  ol  international 
Jaw. 

2.  That  the  Act  of  the  Congress  of  the  Confede 
rate  States,  is  not,  in  the  execution  of  any  power 
given  to  the  Congress  of  the  Confederate  States 
by  the  Constitution  of  those  States. 

3.  That  if  consistent  with  the  principles  of  inter- 
national law;  and  in  pursuance  of  a  delegated 
power  in  the  Constitution  of  the  Confederate  Slates; 
the  modes  of  proceeding  which  the  Act  adopts 
or  sanctions,  are  invasive  of  moral  obligations 
which  society  enforces:  and  violative  of  privileges, 
which  of  common  right,  and  in  certain  relations 
belong  to  the  citizen  of  the  Confederate  Slates. 

It  is  to  the  consideration  of  the  principles  o(  in 
ternaiional  law,  as  they  affect  this  question,  that 
attentiou  may  be  first  properly  directed  These 
will  be  referred  to,  as  they  are  found  in  the  opin- 
ions of  writers  upon  public  law:  in  the  decisions  o( 
cases  by  competent  tribunals  of  different  Slates  or 
nations:  and  in  the  usages  which  prevail  among 
independent  States  or  nations  in  their  relations 
with  each  other. 

In  the  examination  of  the  opinioHS  of  those  who 


may  be  considered  writers  upon  public  law,  it  will 
not  be  necessary  to  limit  our  enquiries  solely  to 
such  as  are  professed  elementary  writers:  in  that 
class  will  be  included  the  opinions  of  jurists,  ex- 
pressed in  any  and  all  other  forms,  than  as  judg- 
ments in  cases  made  before  them. 

In  the  commentaries  on  the  law  of  nations  by 
Manning,  among  the  latest  English  writers,  whose 
works  are  accessible  to  me,  the  general  principle 
which  underlies  the  whole  subject, is  thus  stated  : 
"As  a  nation  consists  of  an  a<rgregate  of  individuals, 
the  property  of  a  nation  is  the  properly  of  all  its  indi- 
vidual members  :  and  as  a  consequence,  a  claimto 
indemnification  for  injuries  sustained  Irom  a  foreign 
State,  may  be  satisfied  by  a  seizure  of  the  property 
of  any  individual  members  of  that  Slate.  The 
practice  of  States  has  invariably  jiroceeded  upon 
the  admission  of  this  basis."  (p.  124.)  "The  State 
of  war,  thus  including  all  the  subjects  of  the  belli- 
gereiu  jiowers,  and  as  all  their  property  is  respon- 
sible for  the  liabilities  of  the  State,  of  which  they 
are  subjects;  the  persons  and  property  of  enemies 
found  in  a  belligerent  State,  when  war  breaks  out, 
may  be  rightfully  seized  by  the  Government :  the 
individuals  as  prisoners  ot  war,  and  the  property 
to  satisfy  claims  on  the  opposed  aation.  This 
practice  has  often  been  mitigated  by  the  forbear- 
ance of  Governments,  and  has  been  forbidden  in  a 
great  number  of  treaties,  but  the  liability  to  the  en- 
forcement of  the  rule  always  exists  when  not  pre- 
vented by  express  Convention."  (p.  125.)  ''Al- 
though (continues  the  writer,)  there  have  been  so 
inany  Conventions  granting  exemption  from  the 
liabilities  resulting  from  a  state  of  war,  the  right  to 
seize  the  property  of  enemies  found  inour  territory 
when  war  breaks  out,  remains  indisputable  accord- 
ing to  the  law  of  nations,  whenever  there  is  no 
special  Convention."    (p.  127.) 

Martens,  in  his  Summary  of  the  Law  of  Nations, 
says  :  "From  the  moment  a  sovereign  is  in  a  state 
of  war,  he  has  a  right,  strictly  speaking,  to  act  as 
an  enemy,  not  only  with  respect  to  the  persons 
and  property  found  in  the  territory  of  the  enemy; 
but  also  with  respect  to  his  enemy's  subjects  and 
their  property,  which  may  happen  to  be  situated 
his  own  territory  at  the  breaking  out  of  the 
war."     (Book   8,  ch.    2). 

Chancellor  Kent,  in  his  Commentaries,  says :  "Ac- 
cording to  strict  authority,   a  State    has  a  right  to 


4b      THE  SEaUESTRATlON  ACT  CONSIDERED  AND  AFFIRMED. 


deal  as  an  enemy  with  persons  and  property  soj 
Ibuiid  wiihin  its  power;  and  to  conliscate  the! 
properly  and  detain  the  persons  as  prisoners  ol' 
war."     (Vol.  1,  p.  06). 

Wildiiian,  in  his  Treaiise  on  International  Law, 
says:  "The  corporeal  ami  incorporeal  property  oi"the 
enemy  is  liable  to  contiscaiion,"  (p.  9)  and  "the 
right  10  seize  ihe  pc^^ons  and  effects  of  enemies 
■within  the  territory  ol'  the  belligerent  at  the  break- 
ing out  of  war,  is  ibuuded  upon  the  common  law 
ol  nations."     (p.  11  ) 

By  nkershock,  in  his  Treatise  on  the  L^nvof  War, 
(translated  by  DuPoncean)asseris  the  rigliis  derived 
from  conquest  in  the  broadest  lernis".  lie  holds  it 
lawful  10  take  all  that  belongs  to  the  enemy: 
maintains  that  a  thing  taken  by  ca|)iure  is  as 
much  the  rightlul  properly  ol  those  who  take,  as  if 
if  htld  by  succession,  purchase  or  any  other  title; 
and  thai  actions  and  credits  are  by  tht  law  oi 
nations,  net  less  under  he  domintion  of  the  bellig- 
ereni  than  any  oiher  goods,    (p.  53.) 

Vatiel  says:  "Among  the  rights  belonging  to  the 
enemy,  are  likewise  incorporeal  things,  all  his 
rights,  titles,  and  debts,  excepting,  however,  those 
kinds  of  rights  granted  by  the  person  and  in 
which  he  is  so  far  concerned,  that  it  is  but  a  matter 
of  indifference  to  him  by  whom  they  are  possessed. 
Such  for  inslance  are  the  rights  of  commt^rce. 
But  as  debts  are  not  of  this  number,  war  gives  us  the 
same  right  over  any  sum  of  money  due  by  neutjal 
nations  to  the  enemy  as  it  can  give  over  his  other 
goods."  He  admits  the  right  of  the  sovereign 
over  "what  his  subjects  may  be  indebted  to  their 
enemies."  (B.  3,  ch  6,  s.  70-77).. 

This  right  of  the  sovereign  powerofa  bell'gereni 
State  or  nation  is  not  only  recognized  by  tl)e>e 
elementary  writers  on  international  law;  but 
in  the  writings  of  Grotius,  Pulfendorll,  Wheaton, 
and  others,  is  expressed  in  terms  equally  stron 
And  to  another  body  of  laws,  we  may  now  turn,  in 
which  the  same  principle  will  be  found  strongly 
and  plainly  laid  down  as  part  of  the  common  law  oi 
England. 

In  Corny n's  Digest  (Tit.  Alien,  c.  2)  it  is  said  "it 
an  alien  enemy  take  a  bond,  the  king  shall  have  it." 
In  the  Aitoruey-General  vs.  Wreden,  (Parker's  R 
267,)  is  the  case  of  Peter  la  Store,  a  Frenchman, 
who  in  England  made  h's  will  during  the  war  with 
France,  in  which  he  gave  legacies  to  certain  per- 
sons in  France.  Per  curiam.  1.  Choses  in  action 
vested  in  an  alien  enemy  are  forfeited  to  the  crown. i 
2.  This  ought  to  be  found  by  inquisition  to  make  a 
title  to  the  king.  3.  A  peace  concluded  before  ihei 
inquisition  discharges  the  forfeiture  In  the  King 
V.I.  Williamson  (Freeman's  R.  39,)  an  action  of 
trover  was  brought  for  goods  that  the  delendant 
had  of  an  alien  enemy.  The  goods  belonged  to 
Depluvier,  a  Dutch  merchant.  May  nard  pro  lieffe 
said  :  if  an  obligee  alien  becomes  an  enemy,  the 
king  shall  have  the  obligation.  If  a  subject  seize 
the  goods  of  an  alien  enemy  he  may  defend  himsell 
against  the  alien,  bu*  not  against  the  king.  He, 
relers  to  a  case  in  24  Ed.  3,  where  an  information 
was  brought  lor  the  money  and  goods  of  Don  de 
Luna,  an  alien  enemy,  and  held  lo  be  well  brought. 
Another  case  in  24  Ed.  1,  where  process  was  made 
against  the  Sheriff  lorcerlain  debtsowinglo  an  alien 
enemy:  and  a  like  proceeding  in  22  Ed.  2;  Bona 
mercatorum  Francise  foris  faciunter  Domino  Reai. 
And  in  the  case  in  Freeman,  it  was  not  denied  that 
the  goods  of  the  alien  were  forfeit:  but  that  until 
inquisition  lound  for  the  king,  the  holding  by  the 
defendant  was  legahs  capita. 

This  right  also  is  asserted  in  Mat^na  Charta.  As 


early  as  A.  D.  1215,  it  is  provided  that  merchants 
shall  have  free  ingress  and  egress  to  enier,  stay 
and  departi)v  land  or  waier,  to  sell  or  to  buy,  ex- 
cept in  lime  of  war.  And  if  they  shall  be  in  Eng- 
land after  war  declared  by  the  country  to  which 
they  belong,  they  shall  be  detained  wiihoui  hurl  to 
them  or  ibeir  goods,  until  it  is  ascertained  in  what 
manner  English  mercliants  are  treated,  who  may 
be  in  the  country  with  which  England  is  at  war; 
and  il  Englisfi  merchants  are  saved  they  may  be 
safe  in  Engl»i*tl.  (Bac.  Law  Tracts,  2  vol.,  p.  25.) 
This  has  been  termed  an  "ominous  qualification." 
And  under  this  section  Chief  Justice  Lee  held  that 
there  was  pow>;r  in  the  Court  of  Chancery  to  issue 
a  writ  for  seizing  and  detaining  until  satisfaction 
should  be  made.  (Key  r*.  Hubbard,  cited  in  Doug- 
lass' R.,  600) 

Let  ns  come  now  to  other  sources  from  which 
we  may  learn  what  are  the  principles  applicable 
this  interesting  and  important  inquiry.  And 
among  the-e,  the  first  which  may  be  con-iidered 
are  the  judgments  of  the  Prize  Courts  of  Great 
Britain  : — Courts  in  which  the  principles  of  inter- 
national law  (ind  their  widest  application,  and  often 
iheirbesliilu.-tralion.  In  the  BoedesLust,5,  C.  Rob., 
234,Sir  William  Scottdiscussesihe  right  of  the  seiz- 
ure of  the  vessel  of  another  nation,  during  a  state 
of  hostilities,  and  before  a  declaration  ol  war.  And 
denying  the  exemption  claimed,  he  says:  "This 
propertv  was  seized  provisionnlly,  an  aci  hostile 
enough  in  the  mere  execution,  but  equivocal  as  to 
the  effect;  and  liable  lo  be  varied  by  subsequent 
events  and  by  the  conduct  of  the  Government  of 
Holland.  If  that  conduct  had  been  such  as  to  re- 
establish the  relatioiisof  peac»e,  then  the  seizure,  al- 
though made  with  the  character  of  a  hostileseiznre, 
would  have  proved  in  that  event  a  mere  embar- 
go, or  temporary  sequestration."  But  "if  the  trans- 
actions end  in  hostility,  the  retroactive  effect  is 
directly  the  other  way.  It  impresses  the  direct 
hostile  character  upon  the  original  seizure."  And 
this  he  says  "is  the  necessary  course,  if  no  particu- 
lar compact  intervenes  for  the  restitution  of  such 
property  taken  before  a  final  declaration  ot  hostili- 
ties." 

Without  doing  more  than  referring  to  the  Santa 
Cruz,  decided  by  the  same  Judge  and  alRrming  the 
same  principle,  we  may  now  come  to  the  writings  of 
American  Jurists;  and  of  Judges  who  in  their  con- 
sideration of  cases,  have  given  us  the  benefit  ol 
ihrfir  opinions  upon  this  subject:  concurring  in  the 
fullest  manner  in  ihe  correctness  of  the  prin'.:iples 
of  public  law,  already  declared.  These  are  not 
to  be  regarded  in  all  cases  as  judgments  of  a  Court : 
but  Ihey  are  the  conclusions  of  those  whose  reputa- 
tion gives  weight  to  their  opinion.  It  is  not  necessa- 
ry, however,  to  cite  more  than  two  extract*, and  these 
relate  to  one  question  in  this  case  much  discuss- 
ed. Judge  Story  has  said  "it  seems  to  be  the  estab- 
lished rule  of  the  common  law  that  all  choses  in 
action  belonging  to  the  enemy  are  forfeitable  to  the 
Crown:  and  that  the  Crown  is  at  liberty  any  time 
during  the  war,  to  institute  process,  and  thereby 
appropriate  them  to  itself"  (8  Cranch,  R.,  113). 
And  this  he  adds  is  the  doctrine  of  the  Year  Books 
and  stands  confirmed  by  the  solemn  judgment  of 
the  Exchequers.  Judge  Iredell  says  :  "The  prin- 
ciples of  the  common  law  do  undoubtedly  recog- 
nize a  forfeiture  of  a  chose  in  action  due  to  an 
alien  enemy.  At  the  utmost  it  only  requires  that 
an  inquisition  should  be  completed  during  the  war, 
so'as  by  ascertaining  the  fact,  fully  to  establish  the 
title  lo  the  Crown"  (3  Dallas,  p.  265).  And  to 
thes  e,  it  will  be  proper  to  add  what  Lord  Mansfield 


THE  SEQUESTKATION  ACT— MAGRATH,  J. 


49 


said  in  Lindo  vs.  Rodney  :  "Upon  the  declaration  o(  questions  their  concurrence,  while  others  as  posi- 
war  or  ho.-tilitles,  .ill  the  ships  of  the  enemy  are  lively  assert  it.  It  is  not  necessary  at  this  time  to 
detained  in  our  pons  lo  be  {Confiscated  as  the  pro-  multiply  the  que-iiions  which  are  to  be  decided  by 
periy  of  the  enemy,  if  no  rieciprocal  agreement  is  tdding  to  them  that  which  involves  the  opinions  ot 
made"     (Doug.  R,  613.)  ihese  writers.     It  they   were  lo   be  considered    as 

This  review  ofihe  law  as  found  in  these  elemen-  'sustaining  the  opinion  of  Lord  Ellenboroujeh,  they 
tary  writer.-;  in  adjudged  cases;  and  opinions  of  cJu'd  "ol  prevail  against  tho-e  whose  opinion's 
eminent  Juri-consuks,  appear.s  to  ine,  in  a  very  con  '>  ^^e  heen  expressed  in  the  plainest  and  strongest 
elusive  manner,  to  establish  the  principles,  appli-  language.  Bui  all  which  Lord  Ellenborough  can 
cable  to  questions,  in  which  they  may  hi  involved,   '•lami    (rom  them,  is    not  that  they  deny  the  right; 


But  it  has  been  said  that  debts  due  to  private 
persons  are  excepted  Irom  these  principles,  and  arc 
not  confiscable :  and  the  cas^  of  Wolllr*  Oxholni, 


but  that  ihey  do  not  atfirm  it.  They  cannot  be  re- 
ferred lo,  as  supporting  the  negative;  even  if  they 
cannot   be    cued    as    alftrmin^   the   right.     And   m 


6  Maule  &  Selwyn,  92,  i.s  referred  to  .n  support  of  ^^^  irt^Hlse  of  Mr.  Manning  to  which  reference 
the  objeciion.  The  stress  laid  upon  its  authority  ''"* ''''"•''"'y  ^T  made,  wi.l  be  (ound  this  plain 
requires  an  examination  of  the    doctrine  it    pro-   f -^^we"     «'  l'i«    ^"'^    o(  law  applicable  lo  debts: 


pro- 
held 


reqi 

fesses    to    establish.       In    that    case  it    was 

that    the    Danish  Ordinance  of  Confiscation    pro-  ,.  u    v;.   .         ■.     ,   ■  ■  , 

mulgaied    ihe    15ih    Augu>t,    1807;    under    which  '?? '^'^  *"'"';  y'"*^^'' '""'!''■. '"■'^.""«^«'' '"^^  ?"«'"'>"'«« 


"Debts    due    Irom    individuals    to    subjects  of  the 
enemv  are    not  in  the    same  position  as    d.'bts  due 


the  delendent,  paid  the  debt  claimed,  into  the 
public  treasury  of  that  Kingdom;  did  not  furnish 
a  de'ence  lo  the  action  brought  against  him  in 
Ihe  Courts  of  Great  Britain.  In  the  judt:ment  ot 
Lord  Ellenborough,  he  rests  the  denial  of  ihe  suffi- 
ciency of  ihe  |>lea,  upon  the  allegation:  that  the 
right  of  confiscaiing  debts  is  not  as  he  says  recoj 


of  the  national  honor.  Debts  due  from  individuals 
to  the  enemy  may  be  confiscated  by  the  rigorous 
application  of  th»  rights  of  war,  being  the  property 
f  the  enemy,  and  therelbre  liable  to  conti-cation : 
but  the  exercise  of  the  right  has  been  disionttnued 
|in  modern  warfare"  (p.  130;.  And  the  various 
.trealics  which  have   been    made  upon  this  subject 


nized  by  Groiius;  is  que.-tioned  by  Puflend.trir  and  l;!'"^'  "*  ''*",  ".^y-"'  ^^^  P''"°'  '''^^  ""^  practice  of  con- 
others;  thai  it  was  not  general  at  any  period  qi  ''-*^*''"^  debts  was  a  usage  that  a  was  necessary 
time;  and  that  no  instance  of  it  except  the  Ordi-  '°  ^"Y^  \8«'"^t  fp-  lol).  It  cannot  then  be  .-aid,  it 
nance  in  question  is  to  be  found  for  more  than  .^  '^i^rii  is  had  for  the  authorry  of  those  who  have 
century.  And  lor  these  reasons  and  because  j,  "«''"  referred  to,  that  the  question  is  doubtlul.  It 
was  supposed  a  judument  in  favor  of  the  plea  '""T  ^*'  considered  as  a  matter,  concerning 
would  be '-pregnant  of  mischief  to  future  times,''  ^'If'^-h  con  .oversy  can  be  sa-d  to  exist, 
the  defence  was  overruled.  i^"'  ^'"''^  ^''"^  Ellenborough  denies  the  ri^ht  ot 

■\  Btaie  or  nation  to   confiscate  debts,   he  approves 
To  this    opinion    ol    Lord    Ellenborough,    as    J  jthe  34  Geo.,  3  c.  79  :    by   which   statute  ihe    money 

1.    believe  unsupported    by   any  other   case,    or    the  jdue  to  the  enemies  of  the  Staie    was,    as    he  says 

'  opinion  ol  any  writer  on  public  law,  it  might  be  culled  in  and  secured  for  them  until  the  return  ot 
sufficient  to  oppose  the  authoriiy  ot  .Iutl;ie  Story  peace.  And  ihis  policy  ne  declares  to  have  been 
who  was  willing  to  take  upon  him  lo  say  that 'no  not  less  generous  than  lawful.  But  how  did  the 
jurist  of  reputation  ca«  be  Ibund  who  has  denied  Government  acquire  the  right  to  compel  the  pay- 
the  right  of  confiscation  of  enemy's  debts."  (S  menl  of  a  debt  due  an  alien  enemy  into  its  treasu« 
Cranch,  p.  140  )  In  the  judgment  of  the  Supreme  jry  for  a  day,  if  under  the  same  rifiht  it  could 
Court  ot  the  United  States,  in  the  ca>e  of  Brown  Hot  have  confisciied  that  debt  ?  If  t'iie  right  ot 
r.f.  the  United  States  (S  Cranch  110),  Chief  Justice  war  admitlt  d  by  all  to  be  suspensive  in  its  elfects 
Marshall,  while  conceding  the  universal  practice  upon  debis,  be  lurlher  extended  to  r-han^e  the 
of  forbearing  to  seize  and  confiscate  debts  and  cooiracl;  and  iubstituie  for  the  debtor  the  Govern- 
credils,  explicitly  recognizes  the  right  lo  do  inent:  what  does  this  involve  but  a  right  of  that 
so.  "Between  debts  contracted  under  the  frtith  ot  Government  to  control  that  contract  accordin'^  to 
laws,  and  property  acquired  in  the  course  ol  trade,   its  opinions  of  policy  and    prudence  ?     What  were 

f  on  the  faith  ol  the  same  laws,  (he  said)  reason  the  relationswhich  that  Act  created  upon  the  pay- 
draws  no  distinction."  It  is  true  the  decision  inent  of  the  sum  due  by  the  debtor  ?  Was  not 
oiiliis  pariicnlar  question  was  not  involved  in  the  the  debtor  discharged  ?  Was  not  the  Govern- 
c  i>e  before  the  Court.  It  is,  however,  the  opinion  inent  substituted  for  him.?  Had  not  that  Gov- 
oi  a  Jurist,  the  correctness  of  which  would  not  he  ernment  the  riiiht,  if  it  so  pleased,  to  confiscate 
hastily  impeached.     To  the  weight  which  is  ju-tly  what  it  had  sequestrated  ?     And     for    what  other 

.  to  be  attached  to  the  opinions  of  these  Judges,  purpose  was  this  control  secured,  except  thai 
may  be  added  the  authority  which  properly  attaches  of  enabling  the  Government  by  its  pos- 
to  the  opinionsof  Chancellor  Kent;  who  concurring  session  ol  the  credits  belonging  to  alien  enemies 
in  the  opinion  that  it  is  a  naked  and  impolitic  riu'hi  lo  control  the  terms  upon  which  peace  should  be 
condemned  by  the  enlightened  conscierce  and  judg-  restored?     If  we    are   called     upon    to  determine 

■  menl  ol  mankind,  declares  it  to  be  a  principle  ol  the  weight  of  that  auihoriiy  which  this  judo-nu-nt 
public  law,  the  exercise  of  which  rests  in  the  dis-  of  Lord  Ellenborough  should  command,  it  nuis't  be 
oration  of  the  Legislature.  (1  Kent's  Com.,  p.  64  }  remembered,  that  its  eflect  would  be  to  exclnd«i 
In  the  treatise  by  Lee  on  Captures,  the  tight  irom  the  operation  of  the  principles  of  international 
to  confiscate  debts  is  not  only  recognized,  but  law,  a  species  ot  property  which  the  interests  ot  the 
Justified,  because   rights  and  credits  are  not  less  in   British  Government   required  it  to  protect  in  every 

►  our  power  than  other  goods,  (pp.  114,  119.)  The  manner.  That  for  this  distinction  between  debts 
name  recoijnition  of  the  right  is  made  by  Mr.  and  other  kinds  of  property,  much  has  been  said 
Wheaton  in  his  elements  of  international  law;  bj  upon  the  grounds  of  policy  but  nothing  by  way  ol 
Bynkershoeck,  by  Vattel,  by  Phillimore  ami  others  exception  to  the  right,  if  a  nation  chose  to  exercise 
of  niodern  times.  In  the  older  works  of  Pufien-  it.  And  that,  however  positive  may  be  tire  state- 
dorlTand  Grolius,  the  same  principle,  to  me  seems  ment  of  this  proposition;  others  which  have  been 
plainly  expressed.  Lord  Ellenborough,  however,  stated  with  more  confidence  and  supported  by 
7 


50 


THE  SEUUESTRATION  ACT 


J  much    more  of  authority    have    bt-en    regarded  bvi 
other  nations,  as  equivalent  to  acts  of  pir.icy.  I 

li  is  not  necessary  here  to  consider  iiow  faj  the^ 
confiscation  of  dehts  is  just  or  polit'c.  In  Ci.Hirls  oil 
ju.-tlce  and  in  questions  like  this,  the  proper! 
enquiry  is,,whot  i.s  the  rule  of  law-?  All  otherj 
considerations  than  ihis,  can  be  only  calculaiedj 
to  mijlead  one  in  the  judgment  which  it  is  his  diuyl 
to  pronounce.  Ami.  liowever  l<Jng  iiiny  hixve' 
been  the  disuse  of  the  right  ot'  the  ccnli>(!ation  ot: 
debts  J  however  muliiplied  the  treaties  which  have] 
been  made  to  prevenf  us  exercise;  liowever 
strikinjr  may  be  the  opinions  of  tho-ie  who  have' 
written  in  opposition  to  it  ;  I  have  been  bionghi 
after  the  most  careful  considerations  of  the  .'ources, 
Irom  which  we  can  derive  a  knowledge  ol  the  right 
of  a  naiion  in  ihis  respect,  to  the  conclusion,  ihai  it 
js  a' right,  indi>put«l.)le.  And  it  is  worthy  of  remark 
that  siliiiongh  in  the  trciiiy  bet  ween  Great  Britain 
and  the  United  Siaies,  its  exercise  had  been  Je- 
dared  impolitic  and  unjust:  Ch.  J.  Marshall,  with 
a  knowledge  of  the  declaraiitm,  expressed  the  opin- 
ion that  tbe  right  nevertheless  exists.  It  was  liis 
iluty,  as  it  is  mine,  '"to  pursue  only  the  law  as  it  i>i 
wriiten."  .  j 

Much  stress    has  been    laid   upon   the  usage    oil 
nations  in  this  respect.    Universal  usage  may  growl 
into  a  general  law.     Indeed    it    has  the  effect  of  a! 
general  law  while  it  prevail*.     But  usage,  iiotuni^' 
versal,  nor  immemorial,  is  a  law  (or  the    naiion  in 
which    it    may    be    found;    an<l    for    ihat     nation 
only  during  lt^  observance.     With  any  other  nation, 
of  ilsel  (,  and  as  a  rule  for  that  nation    because  ob 
served    by  anoiher  nation,  it  carries  with    it  no  au- 
thority.     When  adopted  by  the  sovereian   authori- 
ty of  a  nation,  it  then,  a^    to  that  nation,  be,coines  a 
law.     Not  bei'ause  of  its    adop:ion   by    any    other 
nation  :  but    because  it  then  i<  adopted  and  u-e! 
by  the    sovereign  authority   of   that    nation.     ]t  i- 
alwaysa  guide  which  the  sovereign    may  follow  »i 
will.     And  it  is  admitted  tliai  although  a  disregard 
of  an  usage  may  in  some  cases  even    induce    oblo- 
quy ;  yet  il  it  be  the  will  of  the  sovereii;n   to  di.-re 
sard    it,    his    riaht    to  do   so  cannot    be    cK->nh!e(l 
Usage,  so  far  as  regards  the  question  of  disposing 
nf  the  i)roperiy  of  the  enemy  vi'hen  warbreaks  out, 
is  rather  one  of  policy  than    of  law.     This  policy  is 
not  understood  in    a  coniracted  sense:  but    as  Uie 
exponent  ot  the  political  and  social  welfare  of  ihe 
naiion  by  which  it  is  adopied      And  that    modilica- 
lion  of  the  general    right,    v\  hich    it  suggests,  and 
which  in    its  praciical   adoption  is  but  usage;  is  in 
some  cases  universal;  in  o;her  cases  only  geiieral;| 
and  in  others  confined  to  some    particular  nation. 1 
The    law    admits  the  exercise  of  the  power,  co  | 
extensive  with  the   requirements  of  self-preserva-! 
tion.     To  whatever  point  this  may  be  carried,  it  isi 
because    of    sel'- preservation    jusiilied.       No    in-| 
stance  can  be  cited  more    illustrative    of  the   dis- 
tinction   between    powtr   and    policy,    riglits    and 
Usage,  than  is  lurnished  in    the  political  hi-tory  ol 
the  United  Slates:  its  right  to  confiscate  debts  has 
been  slwavs  aifirmed;    its  power  to   do    so,    under 
the  sanction  oi  Congress,  has  been  declared.     Hut 
its  policy,  has  controlled  the  exercise  of  the  power; 
and    its  'right   has    been    restrained  by    its    usage 
In  the   history   of  the    United    States,    this    usage! 
might  be  referred  to  as  affecting  the  question  of  iis; 
right.     But    in  almost  all    of  its    treaties,    we  find! 
ijits  policy   exhibited    in    its    forbearance    from   the 
exercise  of  thai  power  and  its  control  of  the  asser  i 
tion  of  that  right.     Each  stipulation  in    eachireaty 
is  the  source  of  the  usage;    and    at  the  same    timel 
the  evidence   of  the   right.    The    usage   fesuliedl 


from  a  compact;  and^e  compact  was  the  evidence 
ofthe  admisiigji  «;tJi*  r'^li'-  The  mutual  siipula- 
lions,  thereliir^,  ..v^VSi  V*j  such,  cases,  nations 
assume  aoif'  iMifu;)V'Vr  j)TOve*'{neVkduiission  of  that 
right  whuh  rti.-v  *t\^J^  V<yt«i^iilate  or  control  by  the 
.mutual  ob(igations*tli<'y'up<l"!»riake  to  forbear  its  ex- 
lercise  towards  eacji  othei'.'^'l 

I     But  evni  iu  his  judgment  iiithis    case.  Lord  El- 
lenborouijh  would  seem  to  admit  that  had  the  Dan- 
jish  Ordmanctf  op)erat<*d  directly  upon    the  subject, 
jand  made  hi«Tpayiiient  compulsory;  the  concliisioa 
which   he  then  announced  might  have    been  dilTer- 
lent.     Nothing,'  he  says,    in   the  nature    ol    i>rocess 
lagainsi  the  (iciendnnt  :V'    enlbrce    the   payment  ot 
jfhis   pariicunff"'  deljt  ;  noil\jn^    analogous    to    ihe 
iseizure  or  condemnation  of  corporeal  things    taken 
■in  time  of  war;  occurred  on  this  occasion:  to  which 
he  adds  the  fact,  that  tfie  dtyendant,    not   until    the 
|expiration  of  five  year.*,  paiail<e  debt  into  the  Dan- 
iish  Trea-uiy.     Ofthe  provisions  ofthe  Danish  Or- 
idinance  Lord  Elleiiboroi/^'5ays  he  knows  nothing 
jmore  than  what  appeared  in  I  lat  case  :   and  of  it  I 
ihave  not  more  information    than    is    found  in    the 
'report  of  tlie.jCiA.se.-^  ^5iit^(j<the    facts  are,  as  stated 
by  Lord  Ellenborough,  it  niay  be,    and    probably  is, 
jthat  the  Ordinance  was  little  more    liian    such    an 
Act,  as  that  passed  by  the  Congress  of  the  Confed- 
jerate  States,  (No    ]  75)  to  authorize    debtors  to  pay 
jthe  amounts  due  by  them  into    the  Treasury  of  the 
Confederate  Stales.     The    first    section    of    which 
Act  |)rohibits  the  payment  by  debtors  of  their  debts 
to  individuals    or    corpo.ration8    into    the    United 
States  of  AinL-rica,    with  H;ertain  exceptions:  tlie 
second  authorizes  the  payment  of  such    debts    into 
the  Treasiiiy  of  ihe  Coiil'ederatj  States  :  the  third 
makes  tlie  certificate  issued     upon    such    payment, 
redeemable  ai  the  end  of  the  war.     Such  an  Act,  at 
ihe  close  ofthe  war,  and  when   ihe    rights    of  th« 
foreign  crediior  would  lie  revived,  including  there- 
in a  right  to    sue,  could   not.  perhaps,  in  an  action 
against  the  original  debtor  be  pleaded  in  bar  of  the 
suit     By  thai  Act,  the  Congress  of  ihe  Confederate 
States  did  not  extinguish  or  modify  in  any  manner  the 
rights  ofthe  creditor.     The  prohibition  of  |)aynient, 
added  n  nhing  to  the  forct;   ofthe  obligation  which 
the  public  law  declared;  in  its  general  inhibition  of 
<ill  commercial  iniercour-e  during  the    war.     Pi.y— 1 
ment  by  a  debtor  would    have  been    a  violalinn  ol 
ihis  Act  :  but  it  wotihl  have  been    also  a   violation 
ofthe  public  law.     A  violnliou,    however,    of  both 
codes— that  of  ihe  Municipal  and  that  ofthe  Public 
Law — but  for  which  no  penalty  was   declared;     no 
Court    directed    to     have    or    take   cognizance    ot 
ihe  offence.     The    enlbrcemerit  of  the    jirohibition 
again-t  commercial  intercourse  is  sustained  by  ibe 
seizure   of  the    property,    and  having    it   loricited. 
But  as  in  the   Judiciary    Act  of   the    Confederate 
States  seizures  upon  land    are    not    declared    to  lie 
within  ihe  jurisdiction  of  the  Conf-ederate   Courts; 
and    would     seem   to   have   been  designedly  omit- 
ted ;    it     would     be     a    grave    qiie«tion,    wheth.* 
er    if     money    were    taken  in    the    act    of  being 
transmitted,    il    could  be   forfeited      Be  ihal,  how- 
ever,    as    it    may,     the    debtor     under     the     Act 
(No.    176.)    who    had    paid   the  amount    due  to  a 
foreign  creditor  into  the  Treasury  ol  the  Confede- 
rate  Stales,  could   not    plead   that  payment    in  dis- 
charge of  his    oiiainal    obligation      But    had  that 
payment  so  made  by  him  to   the    Treasury    of  ihe 
Confederate  States  been  ('ompulsory;  and  had  that 
compulsion,    moreover,    been    the    exercise   of  a 
power   claimed  by  the    Government  of  the    Con- 
federate   States,    as    its    right    in    war,    and    its 
privilege    us   a  belligerent    nation;  then  would  it 


CONSIDERED  AlSD  AFFU?|\^D.— MAGRATH,  J. 


not  he  necessary  to  refer  to  any  other  sources  than 
the  juilgnienis  ofthe  Coun  ol  Great  Britain  tor  the 
pro|iO!>ition;  that  the  individtial  deblor  would  bt 
held  proteeied  bv  the  coiniiiand  of  his  Govenimenl 
in  what  he  had  done;  and  the  particulrti- 
wrong,  if  anv,  which  resulted  from  such  paymeni,; 
would  be  a  matter  for  adjustment  betweeaGovern-j 
ments.  j 

In  Great  Britain,  the  authority  ofthe  Parlianienil 
coiilrols  a  contract  exfcuted.  la  Failando  vs 
Rogers  (3.  Bos.  and  Pal.  R.,  197,)  the  rule  is  laid 
down  by  Lord  Alvanley  in  these  pUinlernis:  'It  !.•< 
admitied  ih^t  if  a  man  contract  to  do  a  thing  wlucli 
is  afterwards  prohibited  by  Act  of  Parlianieut  he  ij 
not  bound  by  his  contract."  The  same  ru!--  i.- 
found  in  Brewster  vs.  Kitchell  (I.  Salk.  R.,  19S  ) 
This  express  declaration  ol  the  oblisjation  iin-j 
postal  upou  a  subject  by  an  Act  of  Parliament.! 
re.'-ulls  from  the  controlling  authority  ofthe  source! 
by  which  the  Act  is  made:  and  the  iiece.-sity,  IVdiii! 
every  consideration,  social  snd  |)o'itical,  ol  iiphokl 
iiig  III  every  State  or  nation,  the  duties  ol  obedience: 
to  the  laws.  But  this  It-ads  directly  to  the  second 
proposition  which  has  just  been  scaled;  that  this 
obedience  to  ihe  auihority  ol  law  operating  direcily 
upon  the  citizen  or  suliject,  is  l)y  the  coiiiiiKuij 
content  of  civilized  nations,  reco!»iii/.eU  as  ueces-i 
sary:  and  the  wrong  or  injury  therebv  resiiliing. 
become*  a  matter  concerning  which  the  Govern-[ 
menis  of  Stales  or  nations  negoiinie  or  contend 
Nor  can  we  coti.'iider  of  any  proposition  morecalcu 
laied  to  disturb  the  foundations  upon  which  politi 
cat  society  resis,  than  lur  a  lureisn  tribunal  lo 
umleriake  the  responsibility  of  deciding  that  the 
obedifuce  of  a  ciiizen  or  sulject  is  not  due  to  ilu 
law  o(  his  own  Government; becau>e  of  its  opinion 
that  siu-h  a  Government  had  no  rightful  authoriiy 
to  iriake  such  a  law.  Such  a  right  of  supervij-ioni 
:ind  control  is  involved  in  the  jndfjment  of  L  >rd 
i'^llenborouah  in  this  case:  if  the  Danish  Ordinance 
was  conipuL-ory  upon  its  subjects,  as  is  the  Se-i 
tpieslriitiou  Act  ofthe  Confetlerate  States  upon  the 
citizens  who  owe  obedience  to  the  Government  ol 
thrt.-e  States.  Ii  the  Dani-h  Ordinance  was  not 
compiiUoiy:  il  it  was  not  more  so  than  the  Act  ol 
the  Couizress  of  the  Confederate  States,  (No.  176,] 
the  judgment  of  Lord  Elleiiborongh  need  not  be 
•quet'tiout-dj  although  the  grounds  upon  v.hich  that 
jiidgmeut  i^  re.-ted,  are  as  e<|ually  to  .>-iu-h  a  case 
inapi)lii'able,  as  in  theni-elves  they  are  ex.i 
ceptiunable.  But  if  the  Danish  Ordinance  was 
compulsory;  and  by  it  the  subject  of  Denmark 
was  forced  to  pay  into  the  Treasury  otthat  King- 
dom the  debt  he  owed  to  British  subject.-; 
the  right  as-erted  in  the  King's  Bench,  to  control 
the  odedience  ot  the  Dani-h  subject  to  the  laws  ol 
his  own  Kinydoin;  may  well  be  .-aid  to  be  without 
the  authority  of  law:  ami  in  the  language  ofthe 
learned  Judge,  '-pregnant  with  mischiel  to  Uiture 
limes."'  It  is  against  he  nii>chicf  of  sui-h  a  prin- 
ciple, if  il  be  the  |  rinciple  intended  by  Lord  Ellen 
borough  to  he  as-erted.  that  by  the  consent  of  all 
nation,  \he  decrees  of  a  Court  of  competent  juris 
diciion  III  cases  of  prize,  is  held  todeteruMne,  even 
80  lar  a*  neutrals  are  coiiceriud,  the  (jucstion  o' 
property  in  the  subject-matter  of  dispute;  so  thai 
while  the  deci-ion  ma/  become  itsell  the  cause  of 
war;  iisefTfct  upon  the  thing  is  admitted. 

That  such  i-  the  rule  which  Governments  admit 
as  to  tlu-msf  Ives  and  enforce  upon  others,  may  he 
seen  in  ihe  case  of  McLeod.  When  a  Britisii 
subj'  ct  was  charged  with  participation  in  a  trespass, 
and  a  crime,  committed  within  the  territorial  limits 
of  the  United  States,  and  for  which  he  was  held  to 


answer  ill  the  Courts  of  the  State  of  New  York; 
by  tiia  authority  of  the  British  Government  he  was 
emafeled  and  his  discharge  claimed  because  what 
he  faai  done  was  in  pnr-uance  of  the  authority  ot 
his  town  country:  in  consequence  ol  which  I, is  act 
a  public  duty,  lor  which  according  to  the 
ind  ii>ages  of  ii::tion8  he  was  not  per>onaily 
Lvidiially  liable:  but  the  Government  to  whom 
d  obedience  became  responsible  lor  his  act 
ly  its  order.  And  the  Government  of  the 
States  conceded  that  to  be  the  rule.  It 
be  dillicult  by  reason  or  authority  to 
sh  the  conclusion,  that  this  proposition  ex^ 
ciudds  debts  paid  by  the  direct  order  of  the  Gov- 
►  rnnnent  'O  which  the  dt-bior  owes  obedience;  but 
iiiiliries  murder  and  other  crimes  committed  under 
i;s  aithonty.  No  such  conclusion  can  be  derived 
Iroirtany  source.  The  confiscations  and  retalia- 
tioua  between  Great  Britain  and  France  were 
arranged  between  the  Crovernmcnts.  The  same 
■.iiijusiint-nt  of  delits  confiscated  was  made  between 
(t  ,.;it  Im    Mill  and  the  United  States. 

i  lie  0  .-(•  o(  Folhott  f.v.  0;;den.  1  Hy.  Bl.  R  123, 
.~:>.  G.  3  T.  U.  7'2G,  1  do  not  consider  a  contradiction 
ol  wiat  liiis  been  said;  lliat  the  judgment  of  Lord 
lille|borouj;h  is  not  supporied  by  any  other  case. 
Forflie  c  ise  of  Follioti  vs.  Os;den  seems  lo  have 
iieeif decided  according  to  the  judgment  ol  Lord 
Kenjon  utiun  the  ground  that  the  Coiiliscaiion  Act 
of  N«w  York  Wiis  ihe  act  of  a  rebellious  Colony, 
not  of  an  independent  State.  To  such  a  proposi- 
iK>n,|by  winch  the  act  of  a  Government  de  facto  is 
(|iiestioiied.  It  i-  only  necessary  to  apply  a  lamiliar 
i:iiici|>'e  (I  public  law,  very  plainly  staled  by  Vat- 
uid  u  ■  where  more  stronsriy  illustrated  in  prae- 
le.  th.Mi  in  the  history  of  England:  and  to  the 
ions  derived  from  it,  it  is  only  necessary  to 
by  the  numerous  cases  in  which  such 
have  been  recognized,  as  done  in  pursu- 
of  a  lawful  power  and  therelbre  of  perfect 
lion.  But  before  leaving  this  case  ol  Oaden 
ilioit  t  wo  circiini-tances  are  worthy  of  notice, 
'"enyon  does  not  deny  that  the  true  principle 
I  if  the  property  of  a  subject  is  vested  in  the 
ign  authority  of*  nation  by  an  Act  of  Coii> 
on;eveiy  other  country  mu.st  take  notice 
coiiH-c  atioii.  Nor  does  be  iniimate  a  doubt 
a-e  arisina:  from  the  subject  oi  the  coiifis- 
being  a  |>riv<ite  debt.  I  cannot  therefore 
recfcnize  the  juditment  of  Lord  Ellenborough  as  a 
ot  expo-ition  of  the  question  which  he  under- 
to  decide.  Of  eiemeniary  writers  on  public 
lawlto  whom  I  have  referred;  perhaps  without 
ceplion  they  recognize  the  right  of  a  bellig» 
State  or  nation  to  conliscale  or  sequester 
due  the  subjects  of  lis  enemy.  Of  the  cus* 
lonJof  naiions  there  are  precedents  in  the  case  of 
Fra  ce,  Spain,  Denmark,  several  of  the  States 
composed  the  United  States:  and  I 
add  that  Great  Britain  adopted  the  prin- 
in  the  Act  to  wiiich  Lord  Ellenborough 
.  In  the  answer  to  the  Prussian  Memorial  in 
i  such  a  proposition  would  have  found  its 
if  maintainable,    it  is  not    referred  to.     And, 


]ki 


ere 
deb 


wbi  h 

ma 

cip 

re* 


the 
pro 


the 


ItW 


alU  iigh  generally  and  in  the  strongest  terms  the 
ise  ol  the  right  is  reprobated,  1  have  not  found 
a  siBle    authoriiy    whi'  h  denies   the  existence  ot 


the 


■'ht.  And  the  existence  ol  the  right 
r  and  only  question  for  me  to  decide. 
1  I  next  proposition  discussed  in  the  progress  of 
ument,  is  that  which  denied  that  the  Con- 
gri^ol  the  C-onlederate  States  had  any  power 
Uoc  the  Coiistituiion  of  the  Confederate  States 
niiscate    the  properly,    including  therein  the 


52 


THE  SEaUESTRATION  ACT 


ciedits,  ol  alien  enemies:  but  that  the    power  if  it 
exifted  any  where,  was  in  the  Statt-s. 

A  propo>iiioii  ol  so  mueh  importance:  one  that 
not  only  involves  a  question  of  the  power  ol  the 
Government  of  the  Gonlederate  State*,  in  regard 
to  a  subject  upon  which  thiit  Government  had 
lesjisiated;  assuming  in  thut  act  ol  legi!«lation  a 
lawful  authority  in  Congress  Id  do  what  it  hncl  done: 
could  not  but  commsHd  my  ciirelul  atteniion;  as  it 
must  excite  with  all  citizens  of  these  tjiaie.-  deep 
interest.  And  my  atieniion  to  it,  and  careful  con- 
sideration of  all  which  has  been  said  concerning  it 
is  enhanced  by  the  con  viction,  thai  tiie  power  ilseil 
is  of  ihe  greatest  imporiance;  and  of  esseniial  value 
to  the  welfare  of  these  Siaie?:  while  ai  ihe  .-ame 
time  no  matter  how  great  that  importance,  or  how 
essential  that  value;  the  delegation  of  it  to  the 
Congress  of  the  Conlederate  Slates  must  be  found 
ill  the  express,  terms  of  the  Constitution;  or  its 
exercise  cannot  I  e  justified  by  Congress. 

Anions  ihe  powers  delegated  to  the  Congress  ol 
the  Confederaie  Slates  under  the  Constituiion  lor 
the  Provisional  i Tovernmeiit,  are  these  :  "To  de- 
clare war,  grant  letters  of  marque  and  reprisal. 
and  make  rules  concerning  captures  on  land  and 
water.  To  rai>e  and  support  armies  ;  but  no  ap 
propriation  of  money  to  that  use,  shall  be  for  a 
longer  term  than  two  years."  Other  sections  relate^ 
to  the  navy  and  matters  not  necessary  here 
to  be  referred  to.  The»e  e-xprc-s  grants  ot  power 
may  thus  be  stated:  to  declare  war:  raise  and  sup- 
portarmies:  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  capture.^  on  land  and 
water.  By  ca|)tures  in  this  connection  we  mti-t  un- 
derstand, whatever,  in  time  of  war  is  by  the  authority 
of  law,  permitted  or  directed  to  be  t^iken  Irom  the 
enemy  ;  if  property  with  intent  to  divest  the  title 
of  the  former  owner;  if  per>oiis  with  the  intent  to 
hold  them,  subject  to  the  exercise  of  such  rights 
of  war  as  are  or  may  be  made  applicable  to  them. 
Captures  on  land  generally  are  made  by  the  army  ; 
captures  on  water,  if  under  letters  of  reprisal, 
belong  to  those  who  receive  such  letters,  under! 
such  regulations  as  are  made  by  the  Governmeni 
for  those  who  receive  them.  If  it  be  asked  why 
if  Congress  had  the  power  to  declare  war,  it  .should 
be  also  in  express  terms  charged  with  the  power 
to  make  rules  concerning  capture*  ;  the  answer  is 
readily  given  If  the  rules  concerning  captures 
were  noi  made  the  subject  of  an  express  grant,  and 
delegated  to  a  certain  department  of  Government, 
the  right  to  make  such  rules  would  be  the  subject 
of  dispute;  and  either  claimed  as  incident  to  the 
power  to  declare  war:  or  sought  to  be  exenised 
underthe  military  authority  of  ttie  President.  The 
exercise  of  this  power  by  some  branch  of  iheGov 
ernmentwas  therefore  necessary;  and  it  wastiven 
to  Congress.  The  exercise  was  neces.-ary  beiause 
in  all  wars  the  rules  which  regulate  captures 
on  land  or  water  must  be  made;  or  no  rules 
will  be  of  force,  save  those  which  in  the  earlier 
time  were  recognized,  and  in  a  more  ad 
vanced  age  have  been  mitigated  and  relieved 
of  their  excess  and  cruelty,  by  beins  prohibiied  or 
exercised  in  subjection  to  some  authority.  Two 
purposes  were,  therefore,  accompished:  the  su!>ject 
by  becoming  embod  ied  i  n  an  ex  press  grani.pu  tin  end 
to  its  exercise  by  any  other  power  ihan  tkat  to 
which  it  was  delegated;  and  upon  the  body  which 
had  thus  received  it  as  delegated,  was  imposed  the 
obligati'n  to  execute  the  power,  in  a  mannei  con- 
sistent with  its  responsibilities.  Thus  besidis  the 
advantage  derived  by  placing  this  power  wif  the 
Legislative  department,   securing  thereby   li  that 


Idepariment  the  exclusive  control  of  the  subject;  it 
'gave  10  the  Lesislative  department  of  the  Govern- 
nieiit  the  entire  discretion  concerning  the  disposi- 
tion o(  the  property  ol  the  enemy.  To  the  depart- 
ment of  Government  which  could  make  war 
and  pe«ce  was  appropriately  committed  the  regula- 
tion of  those  matters,  which,  in  all  cases,  are 
admitted  ta  address  tliemselvex  to  considera- 
tions ol'  policy  and  the  suggestions  of  prudence. 
Captures  thus  embrace  all  things  taken  in  war,  and 
rules  concerning  captures  embrace  rules  concern- 
ing everything  wlueh  may  become  the  subject  of 
capture:  whether  persons  who  are  prisoners: 
booty,  which  is  that  taken  by  land  forces  :  or  [)rize, 
which  IS  that  taken  by  naval  forces;  all  are  com- 
prehended under  cai)ture  as  a  general  term.  It  is 
not  limited  to  intra  or  extra  territorial  operations. 
(8  Crach  R.,  120.)  In  the  yrant  of  the  power  to 
make. such  rules,  there  is  no  other  limitation  of  it 
than  that  the  rules  should  apply  to  a  case  of  cap- 
ture. And  such  has  been  the  received  con- 
struction since  the  adoi^ion  of  the  Constitution 
of  ihe  United  States,  as  conveyed  to  us  in  the 
language  ol  its  Courts  and  the  Actsof  its  Congress. 
The  war  now  waging,  is  at  present  carried  on 
within  the  limits  of  as  many  Slates  as  compose 
the  Confederate  Slates.  What  shall  be  the  rule  in 
a  case  of  capture,  made  within  the  limits  of  any 
lone  of  these  States,  it  not  that  which  Congress  has 
or  may  adopt?  in  the  case  of  a  capture  made  by 
the  army  of  the  Confederaie  States,  what  shall  be 
the  rule  to  govern  ii  except  ihat  which  theConfed- 
leraie  States  have  prescribed  or  may  prescribe?  Take 
the  case  of  the  capture  of  a  person,  who  is  a  pris- 
oner of  war  :  what  rule  shall  regulate  his  treatment 
or  disposition  ?  Though  taken  by  an  olficer  of  the 
Confederate  States  and  wiih  troops  of  the  Confed- 
[erate  States,  was  it  intended  that  the  Stale  in  which 
jhe  was  taken  should  prescribe  how  he  should  be 
Itreatod  or  dealt  with  ?  The  caseol  a  prisoner  of  war 
!is  not  an  extreme  case:  it  is  comprehended  in  the 
term  capture.  But  if  the  case  of  a  prisoner  ot 
war,  as  the  subject  of  capture,  seems  so  clearly  to 
be  a  proper  matter  for  a  general  rule  which  Con- 
gress is  thus  authorized  to  adopt,  what  is  there  la 
'the  terms  of  the  grant, which  distinguish  the  captive 
from  the  booty  or  the  prize  ?  They  are  all  cases  ol 
jcaplure  :  and  being  so,  must  all  be  governed  by 
ithose  rules,  which  Congress  by  an  express  grant  is 
:authorized  to  make.  But  in  another  view,  this 
jWill  be  equally  apparent.  The  rules  which  govern 
'captures  must,  at  least  to  a  certain  extent,  be  uni- 
form. This  uniformity  is  not  only  a  matter  of  con- 
sequence to  those  whose  duty  it  may  be  to  enforce 
such  rules  :  but  the  knowledge  of  such  rules,  to  a 
certain  extent  will  influence,  il'  it  does  not  control 
the  conduct  of  the  other  belligerent.  It  would  be 
difficult  to  suppose,  if  each  Stale  had  the  regulation 
of  captures,  that  the  same  rules  would  be  made  in 
each.  If  the  same  rules  were  not  operative,  uni- 
formiiy  of  regulation,  a  matter  iiselfof  intrinsic 
consequence,  would  be  lost.  Bui  more  than  this, 
consequences  of  greater  moment,  would  or  might 
lesult.  A  loose  system  in  one,  might  compare 
with  a  rigid  rule  in  another:  severe  treatment 
might  be  held  proper  in  one  Stale,  a  contrary  course 
be  approved  in  another.  An  army  would  change 
its  rule  of  capture  with  the  Stale  in  which  it  was 
operating.  Not  only  would  the  uniformity  of  treat- 
ment towaids  the  jiersons  or  things  captured  be 
lost:  but  the  ireatment  which  would  be  rereived, 
if  the  chances  of  battle  threw  success  into  the 
scales  of  the  enemy,  would  be  so  uncertain  :  that 
it  would    be    in    all  its    practical    tendencies,  little 


I 


CONSIDERED  AJSD  AFFIRMED.— MAGRATH,  J. 


53 


removed  from  the  mischiefs  of  having  no  rule  what- 
ever upon  tlie  sulijfCi.  If  a  nci  e-sity  is  to  be 
found  lor  rules  which  must  regulaie  capture*  on 
land,  a  ereaier  necessiiy  exi>t»  for  captures  on 
water.  But  captures  may  lie  made  on  waier  wiihin 
the  lerriiorial  limit*  of  a  State  as  well  hs  outside  ol 
such  limits.  It  would  not  be  contended  that  differ 
ent  rules  should  govern  such  capture*:  they  mu.<t 
come  under  the  snme  regulation;  (or  the  Court  in 
which  they  are  to  be  coiideinned  is  a  Court  which 
•  has  no  auihoriiy  to  adminisier  ihe  law  of  a  Stale  : 
the  guide  which  that  Couri  seeks  i>  to  be  found  in 
the  law  of  nations  :  ai  d  the  jurisdiction  which  that 
Court  is  to  exerci.-e  in  such  cases,  is  exclusive 
And  if  It  be  so,  and  the  conclusii)n  to  be  thu> 
derived  is  posiiive;  that  the  rules  for  the  govern- 
ment ol  captures  on  water  if  exclusively  in  Con-| 
gress;  how  can  the  autboriiy  lor  making  the  rules! 
applicable  to  captuies  on  land,  be  relerred  to  any' 
other  power:  connected  as  il  is  wiih  the  rules 
concerning  captures  on  water,  in  the  same  section: 
Ml  ihe  same  senienie;  and  in  th;it  section  and  sen- 
tence relerred  to  the  same  source.  '■ 
But  it  is  said,  if  this  be  so,  it  does  not  include 
debts,  because  they  caiinot  be  ever  said  lo  be  cap- 
lured  :  ihai  of  them,  teizure  lecbnical'y  i-  iuipossi 
ble.  If  by  this  is  meant,  ihat  nothing  can  be  cap-j 
tured  or  confiscate*!  ihan  ihat  of  which  there  inayl 
be  aclual  manucaption,  it  may  be  contradicted  by 
many  ituihorities;  the  respectabiliiy  of  which  can- 
not l)e  questioiieo  in  the  case  of  the  Nuesira 
Senora  do  lo>  Dolores,  (Edw.  Ad  R  ,  p.  60.)  v  as| 
raised  the  quesiion  wlieiher  a  decree  (or  cosis  and 
damages,  which  had  not  been  executed  during  the 
war  with  Spain,  could  be  afier  pe  ue,  revived  in 
favor  ol  the  Spanish  subject.  It  was  objected  that 
ine  decree  enured  to  ihe  benerii  of  the  sovereign  : 
and  the  reply  was  ihai  tne  Crown  might  have  had' 
it;  but  as  no  proceeding.-*  were  taken  to  contiscate 
it,  it  remained  suspended  durins  the  war:  and  was' 
revived  with  the  close  of  the  war.  Sir  Williaui' 
Scott  said:  "Here  there  was  no  bodily  possession; 
nor  indeed  could  there  be:  but  still  some  judicial' 
act  might  have  been  done,  declaratory  ol  the  for- 
feiture to  the  Crown  of  those  rights  which  vested 
in  the  claimant  under  the  decree."  The  same 
princi|ile  is  laid  down  with  more  directness  in  the 
case  of  the  State  of  Georgia  t'«  Brailslord  (2  Dabas 
R.  402.)  by  Ch.  J.  Jay,  who  said  :  •'The  great  ques 
tioii  turns  on  the  property  of  a  cenain  bt)nd  : 
whether  it  belongs  lo  Brailslord  or  to  Georgia?  Ii 
is  put  in  suit  by  brailslord :  but  il  Georgia  by  virtue 
Ol  the  Contiscation  Act  is  really  entitled  to  the  debt, 
she  is  entitled  to  the  money,  ihouiih  the  evidence 
of  the  debt  happened  to  be  in  the  possession  ol 
BraiNford  ;  and  thouah  Brailslord  has  by  that 
means  obtained  a  judgment  for  thai  amount."  ! 
Here  are  cases  of  debts:  case-  in  which  in  the' 
one  case  the  evidence  was  belore  the  Court,  but  in 
the  other  it  was  not  The  thing  soughi  was  the 
debt  :  the  bond  or  note,  or  oiher  writien  acknowl 
edgment  of  obligation,  was  but  the  evidence  of  thai 
debt.  The  loss  of  it  did  not  cancel  the  debt:  ihe 
transfer  of  11.  might  not  be  sufficient  lo  divest  a  li  lie 
lo  the  debt.  To  proceed  therelore  against  the  thing 
that  was  due;  the  money  which  was  owiiija;  would 
be  lo  proceed  against  that  which  oouhl  be  made 
tangible  and  real.  If  you  could  only  sequester  or 
cuntiscate  the  debt  when  ihe  evidence  of  it  would 
'le  also  forihcoming,  there  would  be  an  ellectual 
repeal  ol  the  riyht  ol  a  Sta'e  or  n 'lion  so  to  con- 
tiscate or  sequester:  lor  the  withdrawal  of  thf- 
evidence  ol  a  debt,  would  then  withdraw  the  debt 
itself. 


But  were  that  risht  ol  a  Stale  or  nation  ques- 
ionable,  it  could  not  be  impeached  on  this  ground. 
|Tne  di-tinction  which  the  law  draws,  between 
the  thiog  due,  and  the  evidence  of  it :  the  various 
cases  in  which  a  party  may  recover  without  the 
production  of  the  evidence,  but  on  proolof  its  loss: 
jare  sufficient  to  show  that  it  is  the  thing,  the  debt 
litself  which  the  law  resards.  Such  was  the  con- 
'clusion  of  Ch.  J.  Marshall  in  ihe  United-Siates  vs. 
Brown,  (S  Cranch,  R  110  )  Inihai  case  h's  opinion 
was  that  debts  were  conli-cable  :  and  that  like  any 
oiher»peoies  ol  propeity,  the  dispo-iiion  ol  them 
[must  be  made  under  such  law  as  the  Congress  ol 
the  United  Slates  might  enact,  in  piir,«uance  of  its 
power  to  make   rules  concerning  cap'ures. 

But  il  IS  still  farther  urged,  that  if  the  power  does 
lexist  lo  confiscate  thi»  species  oi  properly,  that 
jrifiht,  and  the  right  also  lo  confiscate  any  other 
|pro|>ertv  of  alien  enemies  within  the  limns  ol  the 
^taie,  1  elong-  to  ihe  Slates  and  not  lo  the  Govern- 
ment of  the  Confederate  States  And  this  pro- 
jposition  is  supported  by  what  is  deemed  contem- 
Iporaiieous  exposition,  exhibited  in  the  (act,  that  in 
tihe  American  Revolution  of  1776,  such  Conli-cation 
'Alls  as  wer>^  adopied,  were  adopted  I'y  the  several 
iSiaies;  each  in  its  sovereign  capacity;  and  not  by 
Ithe  Clovernmeni  of  those  Stales  in  its  political 
Icapaeiiy  under  the  Articles  of  Confederation  In 
the  first  place,  in  the  consideration  of  this  ohjec- 
lion,  il  is  material  to  bear  in  mind,  that  the  legisla- 
tion which  took  p'ace  in  the  several  Si  ales  upon 
Ith's  sabject,  was  at  the  siiggeslion  and  at  the  re 
IqueslOl  the  then  Concress  of  tne  States,  engaged 
'in  the  war  w-ith  Greai  Britain.  In  the  preamble  to 
tlie  Confiscation  Act  passed  by  the  State  of  South 
Carolina,  it  is  set  (brih  I  hit  "Congress  alter  due 
and  mature  consideration,  authorized  ihe  seizing 
jaiid  vcndeinnaiion  of  all  properly  Ibiind  on  ihe  sea 
ibelouging  to  the  subjects  of  Great  Britain  ;  and  re- 
coirmend  to  the  several  Siaies  in  wiiii-h  such  sub- 
jects have  properly,  to  confiscate  ihe  same  for  the 
pnbliC.use."  (4  Slat,  at  Larae,  So.  Ca  ,  p.  516.) 
lAnd  il  was  in  pursuance  of  this,  that  the  Act  was 
passed.  But  how  lar  such  legislaiion  by  the 
Siate»  was  considered  independent  of  the  power 
even  at  tha:  day  confided  to  Congress,  may  be 
a-certained  from  the  faci,  that  in  the  treaty 
of  peace,  its  provisions  were  held  to  tontrol 
all  unexecuted  proceedings,  under  the  laws  ol  ihe 
several  States  To  Congress,  by  the  Articles  of  Con- 
ledeitition.  was  commiited  the  sole  and  exclusive 
pow*  of  determining  (>n  pe-ice  and  war.  But  the 
charges  and  all  other  expenses  incurred  lor  the 
comdion  defence  orgeneral  we  fire,  were  delrayed 
Irdinp  common  treasiiiy  suptdied  by  the  several 
:siat«!i.  A  general  law  of  Congress,  operating 
alike  upon  all,  and  in  each,  might  be  mischievous 
operation.  Each  State,  therefore,  was  re- 
qtiesled  to  lake  mea-ures  in  regard  to  confiscation  : 


and 


he    adoption    of  those    measures    in    all     heir 


iletai  5,  was  referred  lo  the  State  that  each  might 
acta  it  should  deem  best  suited  lo  its  condition. 
The  ower  iri  Congress  under  the  Articles  of  Con- 
ledej  Llion  lo  have  passed  a  Confiscation  .Act,  was 
deri\  'd  from  its  power  to  establish  rules  for  decid- 
ing i  a'l  cases  what  cap^iir**  should  be  law- 
ful, t  is  not  necessary  to  discuss  the  quesiion, 
whet  er  if  the  Constitution  had  not  expressly 
delej  ted  lo  Ccmgress  the  power  to  make  r.jles 
cone  'ning  captures  on  land  or  waier,  the  same 
pow«  would  have  been  regarded  as  incident 
to  its  lower  to  declare  war.  In  the  Con-tiiiiiion  oi 
the  I  iied  States,  and  of  the  Conlederaie  Slates,  it 
is  ch   iged    from    the    character   of   an    incidental 


THE  SEaUESTRATION 


law:  and  ^hollld    alway^s  be  so.  1 

lish  rules  (or  deciding  in  all  Crt.^es,  wh;tt  captures  13iu  under  the  Articles  of  Gonfrderation,  there 
on  land  and  -water  shall  be  legal.  The  lerm>  were  no  Court>;  that  is  none  organized  (or  ihe 
seem  to  have  been  intended  to  exclude  doubt  by  general  |)iir|)Ose  of  <ulministering  justice  according 
their  compreh-nsive  import:  not  lapiures,  i>ut  all  lo  the  hi  w  ol' the  land.  Such  organizations  were, 
captures.  And  that  Congress  sliould  have  the  power  !ouly  lo  lie  I'ound  in  the  States  :  and  in  all  matters 
to    dtcide  in    all  cases  what  captures  on    hiiid  and;  where    the    action   of   Courts    was   or    might    be 

T    .,  ...    ._.-....■.    required,  it  was   necessary    to  reler  them  to    the 

Slates,     where     such     Courts    were     in     opera- 
lion.     A    striking  illustration    of    this,  is    in    the 
17al,    which    recoin- 
erect    tribunals   in   each 


waler  >hall  be  legal.     Is  there  an  exception  loihis 

comprt- hensive  control  of  all  captures  ?     Is  there 

aught  that  serves  to  support  the  opinion,  that  there   ^,^„.     ..    ..^...^...^  . 

weie  s-oiiie   capture.s    which  a    State   might  iiiake.Siresohition    of    Congress 

not  embraced  in  thi.-'  grant  of  power?     Do  noi  these[lmend<'d  to  llie  Stales,  to 


that  exercise  sanitioneJ  t)y  lawiui  authority,  l^  iiateci  to  <JO  lueni  gooa.  inatin  inis  oiate  p:  oiect  • 
capture.  That  which  the  army  lakes,  that  which  iiig  those  who  should  lend  inon;y  on  the  securiiy 
the  navy  takes,  that  which  the  civil  oifietr  takes  jjol  IreehoKi  or  leasehold  estate,  i-^  an  apt  illustr.itioii 
each  is  taken  by  the  aui!iori:y  of  law:  and  that  lawl  otthi.-*.  It  was  passed  while  this  State  was  one  of 
■  o    „cicKliol,u,t  ln7    t  Hk  urn    (jp  am  horitv  nf  t  iip  fxdv      t hp  TI  niled  Slates  uiidi  r  ihe  Ariieles   ofOonfedpra- 


is  established  by  the  pro  er  authority  of  the  Gov 
ernmeiu  lor  which  that  capture  is  made.  Yet  it  is 
said  ihat  during  the  progress  of  the  Revolution, 
the  Stales  did  exercise  the  right:  some  in  one  iorm 
some  in  another.  But  this  power  was  exercised 
by  a  Slate,  in  pursuance  of  some  authorization 
given  by  Congress  bedirehaiul;  or  ratification  of 
the  act  alter  it  was  done.  •  And  if  this  were  no 
so,  why  should  we  refer  to  the  overruling  contro' 
of  circumstances  at  that  lime,  as  guides  for  us  in 
these  days?  What  they  intended,  how  they  wished] 
to  distribute  the  powers  of  Governmi-nt,  their  Arti-j 
cles  of  Confederation  show.  And  when  from  this,! 
there  was  any  departure,  it  was  the  consequence 
ol  their  neees>ilies;  not  the  proof  that  they  did  not 
regard,  what  they  had  so  plainly  expressed. 

This  power  then  which  that  <Jona;ress  cotild 
have  exercistd,  was  in  some  cases  for  ihal  exercise 
referred  back  to  the  States.  From  thein  the  Con- 
gress received  ii:  to  them  forlhalcxerciseit  w'as  in 
some  cases  re-conveyed.  But  it  was  so  received 
by  them,  and  was  so  acted  upon  by  ihem,  as  con- 
trolled by  the  exclusive  power  and  therefore  and 
right  in  question  of  war,  and  the  decisions  o( 
all  cases  of  capture,  which  still  remained  ia  Con- 
gress. In  the  setllemenl,  therefore,  of  th>-treaty 
of  peace,  that  treaty  acted  upon  the  legislation 
of  the  several  Acts  of  the  several  State-,  in  the 
same  manner  as  if  these  Acts  had  been  directly 
passed  by  the  Congress,  assembled  under  the 
Articles  of  Confederation. 

Another  circumstance  which  rendered  neiessary 
this  exercise  by  the  State  of  a  power  delegited  lo 
the  Congress,  must  not  be  overlooked.  H'vvever 
clear  maybe  the  perceptionof  the  right  whiciexists 


the  United  Slates  uiidir  ihe  Articles  of  Confedera- 
tion. The  consideration  of  that  Act  is  not  at  tni-i 
time  impor  ant,  except  as  it  may  be  considered 
(he  illustraiioii  of  the  proposition  that  the  rules 
which  regulate  the  d;spo.--ition  of  enemy's  prop- 
erty within  the  Siaie,  belongs  to  the  State. — 
But  when  this  conclusion  is  claimed  as  properly  to 
he  deduced  from  the  Aci,  it  must  be  remembered 
|ihat  since  that  lime,  this  State  has  twice  united 
itself  in  1  he  bonds  ot  a  new  political  Union.  Once 
by  iis  ratilication  aiid  ad()|)tion  of'  the  C(>iistitution 
oi  the  United  States  :  aiul  si  ill  more  recently  by  its 
raiification  and  adoption  ofihe  Constitution  of  the 
Confederate  States.  And  in  both  of  these  Con- 
stitutions, the  Stale  gave  in  express  terms  to 
Congress,  power  lo  declare  war,  and  to  make  rules 
concerning  captures  on  land  and  waler.  Is  the 
power  then  so  granted  by  the  State,  inconsistent 
with  the  power  now  in  argument  claimed  to  be 
still  reserved,  because  of  the  terms  of  the  Act  re'% 
ferred  to  ?  If  it  is,  then  clearly  it  is  a  power  which 
has  l>een  delegated  ;  and  if  so,  that  delegation  of  it, 
would  be  ihe  repeal  of  the  law:  and  it  could  noi 
he  enforced  by  the  State  :  (or  it  will  be  observed, 
that  the  power  to  make  rules  concerning  captures, 
whit^h  misjlit  have  been  sustained  as  an  in- 
cident to  the  power  to  declare  war;  in  being  con- 
verted into  a  substantive  grant  delegated  in  ex- 
press lerais  lo  the  Congress  of  the  Confederate 
States;  is  conclusive  as  to  the  power  of  Congress 
10  make  rules  in  all  cases,  which  are  cases  ot 
(capture.  And  not  only  as  has  been  seen  does  the 
opinion  of  Ch.  J.  Marshall  already  referred  to,  indi- 
cate the  conclusion  which  he  had  adopted  ;  but 
n  the  United  Stales  therehave  been,duringihe  con- 


I 


m  Government  in  cases  of  wan  o  coufiscateprivate  liinuance  of  that  Govern  men  i,  instances  in  which  th 
proiierty,  it  is  ever  justified  by  necessity  AndjlCoiipress  of  the  United  States,  dealt  with  or  pro- 
the  ptoof  of  the  facts  upon  which  the  coni  cation  vided  for  the  cases  of  persons  who  mi<;hl  become 
depends,  that  is  that  the  person  is  an  alien  nemy,  alien  enemies;  and  property  which  belonged  to 
and  that  the    property  in   question  belongs  ij   him;  lalien    enemies;    oases  of  capture  lechnically;  in  a 


CONSIDERED  AND  AFFIRMED.— MAGRATH,  J. 


65 


maoner  which  very  plainly  shows,  that  it 
mur>i  have  been  receivfd  as  unquestionetl. 
ihat  no  sui:h  power  as  is  now  claimed  for  the  Stale 
v,':;s  III  this  Stale  or  in  any  Stale  ;  l)ui  that  it  w<i^ 
vested  in  the  Congress  oTthe  United  States:  andb\ 
the  saineicrms  is  now  vested  in  the  Coiigrosof  the 
Contederate  States.  Such  was  the  Act  ot  the 
Congress  ol  the  United  Siaies  passed  ihe  6th  July, 
179S,  which  deilared  that  all  natives,  citizens, 
denizens  or  subjects  of  ihe  hostile  nation  or 
Governninent,  shall  be  liable  to  be  apprehended, 
restrained,  secured  and  removed  as  alien  eneiiiits; 
and  that  such  as  were  resident  in  the  United  Slates, 
and  not  chargeable  with  actual  hostility,  shall  be 
allowed  (or  the  recovery,  disposal  and  rt-moval  ot 
their  property, such  lime  as  may  be  provided  by  the 
terms  of  the  treaty  with  the  Government  ol'  which 
they  shall  be  naiives, citizens, denizens  or  subjects; 
and  it  no  such  treaty  exi-ts,  that  the  President  ol 
the  United  Slates  shall  allow  sucli  reasonable  time 
as  may  be  consistent  with  the  public  saleiy  and 
onnsi>tent  with  humanity  and  nation-il  hospitality 
The  Congie>s  of  the  Contederate  States  has  passo.l 
an  Ai-t  nearly  similar.  These  Acts  therefore  weie 
intended  to  operate  on  the  persons  and  property  ol 
alien  enemies  :  the  persons  according  to  its  pro 
virions  being  obliged  to  depart  ;  the  property  to 
recovered  and  removed,  subject  to  certain  qualili- 
cations  ol'  this  privilege. 

I  am  not,  however,  to  be  understood  now  as 
deciding  whether  this  Ordinance  ol'  the  Slate  ol 
South  Carolina,  is  ol  Coree  or  not.  I  have  only 
suggested  such  considerations,  as  seemed  cal- 
culated to  afl'ect  the  strength  of  ihe  argument 
deduced  from  it.  But  if  of  I'oroe,  it  would  not  even 
then  prove  tlie  proposition  as  slated.  Jt  is  conlined 
to  a  single  class  of  cases  ;  debts  or  loans  secured 
by  mortgages  ot  leasehold  or  freehold  estate^. 
And  a  creditor  claiming  the  protection  of  the  Act, 
would  have  to  show  that  he  became  such  on  the 
)>ublic  laith  of  ihe  Stale;  and  sliouhl  be  pro- 
tected, although  he  might  bei^ome  an  alien  enemy 
Such  an  obligation  so  secured,  would  not  raise  an; 
issue  of  right  between  the  State  and  the  Confeds, 
erate  Slates  :  for  it  would  be  comprehended  in  the 
exceptions   siaifd  in  the  tirsi  section  of  the  Act. 

The  argument  which  is  urged,  to  lake  from  the 
Congress  of  the  Confederate  States  the  power  to 
determine  a  qne-tion  ol  tonh-cation;  aided  all  the 
ooiisiderations  of  prudence  and  policy  which  the' 
'  I  rminalion  of  It  in  volves  :  considerations  which' 
'er  the  Government  of  the  Coniederate  Slates 
(iii.-et  many  independent  Slates;  the  interest  ol 
each  of  which  in  its  seperate  capacity,  as  of  all 
in  iheir  uniied  capacity  must  be  consuhed:  and  to 
transfer  that  power  to  each  State  lor  its  regnla. 
tion  ;  is  not  recommended  to  me  by  any  reason 
which  has  yet  been  urged.  It  is  a  power  always 
recognized  as  of  essential  consequence.  The 
•power  to  regiil.ite  the  dispr>sition  m  hirh  should  be 
made  ofthepropenyofenemies  within  the  leiritorial 
limits  o(  a  belligerent  nation,  is  one  so  full  ot 
importance  that  it  is  often  made  the  subject 
of  special  stipiilaiions  in  Treaties  or  Conventions. 
And  when  it  is  argued  that  the  power  to  conlis- 
cate  ;  the  extreme  exercise  sometimes  adopted, 
of  tlie  power  to  regulate  the  disposition  of  the 
property  oi  the  enemy  ;  shall  be  denied  t)  the 
troverninenl  o(  the  Confederaie  Stales  ;  and 
considered  as  the  right  of  each  Stale,  acting  in  i's 
ioverei^ii,  independent,  and  exelusiv*;  capic 
iiy:  it  involves  as  not  the  least  of  the  consie- 
quenccs,  the  consideration  ol  the  question, whether 
under  the  Governnieut  of  the  Confederate   State?, 


it  v7ould  not  necessarily  lead  virtuallv  to  the  denial 
of  the  power  itself.  It  gives  no  strength  lo  the 
argumeiil,  to  refer  lo  such  measures  as  were 
adopted  by^  the  United  Colonies,  afterwards 
the  United  States,  under  their  Articles  of  Confede- 
ration. It  would  be  a  matter  of  questionaole  pro- 
priety to^seek  a  guide  for  the  action  of  a  regular 
Governqieni;  with  its  powers  understood;  its 
checks  J|djusted;  and  all  tliai  was  essential  lor  its 
harmonious  action  well  understood;  in  the  measures 
adopied>by  a  revolutionary  Government;  seeking 
support  against  a  powerful  enemy,  in  any  ex- 
pediL-nt  which  might  serve  to  obviate  the  disad- 
vantages preSMng  upon  it.  There  are  belter 
sources  ot  inlurmation  (or  us  than  can  be 
found  in  the  operations  of  a  Government,  which 
was  created  by  a  necessity,  supported  by  a  neces- 
sity, aad  yielded  lo  a  necessity.  The  Constitution 
of  the  Confederaie  Stales,  in  its  provisions, 
has  attempted  to  protect  itself  against  the 
ivedkness  which  was  exhibited  under  the  Arti- 
cles ol  Confeil.  ration;  and  the  aggressions  which 
were  developed  under  the  t  onsiitution  of  the 
Un.ted^States.  There  was  as  great  a  desire  to 
be  iiroiecled  against  a  recurrence  of  weakness  in 
the  one  case:  as  against  the  aggressions  of  the 
lother.  Hence  we  find  that  the  provisions  in  the 
jConstilution  ot  ihc  United  States  by  which  the 
weakne-ss  of  the  Government  which  existed  under 
jlhe  Articles  of  Confederation  was  removed,  are 
also  fftained  in  the  Constitution  ot  the  Con- 
jfederaie  States;  and  that  such  as  in  them- 
[.selves  essential  to  a  perfect  Government  were 
perverted,  have  been  protected  by  such  new 
limitations;  as  have  been  deemed  suflicieni  to  se- 
cure ll|e  good  they  were  iniended  to  accomplish; 
[while  they  prevent  the  evils  which  they  were  for- 
merly piade  to  produce. 

I  liuithe  argument  which  denies  this  power  lo 
the  Cangress  of  the  ConlederateStates,  is  ob- 
inoxioi*  to  every  objection  which  can  be  urged 
ai»ains|  it,  not  only  as  a  question  of  construc- 
tion, b^t  as  a  measure  ol  Government.  It  is 
lonly  n|cessary  to  suppose  it  transferred  as  con- 
jtendedfor,  from  the  Congress  of  the  Coniederate 
Slates^othe  States,  each  in  its  separate  capacity; 
and  sofiransferred,  to  consider  its  practical  opera- 
[iion;  ill  connection  with  or  conir.)lled  by  the  exer- 
(•ise  ofother  powers  unquestionably  delegated  to 
iCongriss;  to  be  perfectly  satisrted  that  such  a 
transfi^  does  not  ))roduce  more  violence  in  the 
constriction  of  the  Conslitution  itself;  than  to  Ihe 
great  «  nds  of  Government,  whii'.h  that  Constitution 
was  in  ended  to  develope. 

The  ntercourse  with  foreign  nations  is  regulated 
by  the  e  Contederate  States  in  their  conledrrate 
cap.ui  jr.  They  all  speak,  through  the  same 
mediiiii.  The  Government  vvhicn  they  have 
lorgani  ed  determines  ihe  condu.-i  which  shall  De 
jobserv  id  in  each  Stale,  in  regard  lo  all  mailers  in 
[which  oreign  nations  are  concerned.  That  Gov- 
jernme  t  has  the  power  lo  make  treaties:  and  these 
treatie  when  made,  are  the  supreme  law  of  the  land. 
Ifby  tl  5  terms  of  a  treaty  it  should  be  stipulated  that 
jin  the  vent  of  war,  debts  due  by  the  citizensof  these 
jConfe<  ;rate  SiHtes, should  not  be  confiscated  orse- 
queste  Ld:  coii'd  any  State  in  violation  of  the  terms 
[ollhat  e.itycontisca'e  or  seque>tersiK:hdebis  ?  If 
by  anc  her  stipulation  in  a  treaty  it  was  provided, 
tnat  in  he  event  of  war,  citizens  or  subjects  of 
ihat  St  te  or  nation,  should  be  allowed  to  depart 
Iwithin  certain  time  alter  ihe  declaration  of  war  ; 
:and  h:i  e  also  the  privilege  of  removing  their  pro- 
perty ;  :ou!d  a  Stale,  under  the  Conslitution  of  the 


56 


THE  SEQUESTRATION  ACT 


Confederate  States,  violate,  that  slipulatim  of  a 
ireaiy  ?  If  not,  would  it  not  be,  l)ecau>e  inliindins 
itself  to  obey  the  terms  ot'that  treaty,  it  had  parted 
with  Its  right  to  do  -uch  thin?*,  in  reiaiioii  toaill 
mailers  lawfully  enibracettin  the  treaty;  as  without 
such  agreement  it  niighf  have  done.  '• 

When, therefore,  It  i^'cTaimed,  that  the  power  tO| 
conti-cate  the  property  „of  ent-iiiies,  is  noi  in  the 
Cengress  of  the  Confederate  States,  but  is  in  the 
State  ;  or  in  each  ol  ih*j,  States  ;  and  that  it  is  in 
each  State,  in  its  stivereign  capacity  ;  and  in  such 
State  when  exercised  ,l»y  it,  is  exercised  a*  an 
altribiile  ot  its  sovereignty  ;  we  find  it  at  Opce 
controlled  ;  and  its  exercise  perchance  proliibidbd  ; 
liy  the  power  wliic-h  that  Slate  has  delegated  tothe 
Government  of  the  Confederate  Slates  to  nfcke 
treaties:  whioh  when  lUrtde    shall  bind  thai  Stlte. 

But  it  may  be  said  that- the  restraint  upim  Ihe' 
exercise  of  the  power  does  no',  prove  that  it  does 
not  exi^t  in  -the  Slate:  true  :  but  it  also  proves  thai 
in  such  a  case  it  is  not  the  will  of  ihe  Stale  which 
determine-^  its  exercise:  and  that  the  will  if  It  did  at 
tempt  to  determine  that  exercise  may  be  controlled 
and  prohibited.  This,  however,  is  utterly  at  variat^e 
with  our  theory  of.Government,  which  makes  tte 
right  of  the  Stale  as  perfect,  in  the  pow»rs| 
which  belong  to  it  ;  as  is  right  of  the  Gi 
ernmenl  in  the  powers  delegated  to  Ui 
Besides  this,  in  relatipn^to  a  power  of  so  m 
importance,  of  such  •abs'Slute  necessiiy,  no 
could  contend  that  it  was  to  bein  abeyance:  orco 
not  be  exerei>ed  ai  all.  The  argument  on  the  cfl|n- 
irary  was  pressed,  to  the  point;  that  il  was  a  vital 
power  inGovernment:but  that  theexercise  ofit  was 
properly  only  in  the  State.  The  treaty  power  shows 
that  it  cannot  be  exercised  by  the  State  as  a  sove- 
reign power:  that  its  exercise  may  be  altogether 
prevented  by  the  terms  of  a  treaty  providiiia  t|al 
it  shall  not  be  exercised.  Can  that  be  called  a 
power  reserved  to  the  State,  which  the  State 
cannot  exerci>e  without  the  consent  of  Congress  ? 
And  this  power  over  those  things,  which  may  be 
the  subjects  of  confiscation  by  a  State,  if  it  bad 
that  power  :  and  whii-h  are  thus  controlled,  if  that 
power  was  attempted  by  the  State,  by  the  supe- 
rior authority  of  the  power  in  Congress  to  make 
treaties  ;  not  only  thus  negatively  disproves  the 
power  so  claimed  for  the  Slate;  but  in  another 
view,  as  positively  leads  to  the  same  conclusion.; 
When  the  Cong'ress  of  the  United  States  by  its 
treaty  with  Great  Britain  stipulated  that  debis  by 
the  citizens  of  the  United  Slates  due  to  the  sub- 
jects ot  Great  Britain  should  not  be  confl^^^■ated  ; 
what  became  of  the  power  of  a  State,  if  to  ii  such 
power  ever  righ'.fully  belonged,  to  confiscait  such 
debts?  Could  it  be  exercised?  Certainly  not.  W  as 
the  exercise  of  that  power  then  prevented  bv  any 
other  cause  than  that  its  exercise  by  the  State 
would  be  in  conflict  withthe  exerciseofother  pow- 
ers which  by  the  State  had  been  delegated  to 
the  Government  ot  those  States?  Il  may  be  as- 
sumed thai  such  would  be  the  admission.  To  what 
then  would  that  admission  lead  ?  To  this  proposi- 
tion, that  this  important  power  i.s  re-erved  n  each 
Slate  :  but  that  Congress  may  prevent  its  esercise 
by  the  terms  of  a  treaty  made  before  a  war:  or 
control  its  exercise  by  the  terms  of  a  treatj  made 
after  the  war. 

Thai  such  are  the  conditions  upon  whih  this 
power,  if  claimed  for  the  Slate,  can  only  li-  exer- 
ccised  ;  that  such  is  the  control  to  wlich  it 
would  be  necessarily  subject,  seems  too  c.-ar  for 
dispute.  But  when  it  is  thus  subject  tocoijitions 
and  clogged  in    its  exercise  by  such  contro.  it  has 


lost  every   attribute   of  that  right   which   belongs 
to    sovereign    power.     It  has  ceased  to  be    a  sub- 
sianiiv<-  right:  is  nu  an  independent  power:    and 
It  it    I  an    be    culled    a    right,    is    such    onlv  by  the  j 
sufleriinci-  of  that  Government   which  can  prevent ' 
orsus|><-nd  its  exercise. 

To  contend  that  a  power  was  incident  to  a 
sovereignly,  which  that  sovereignty  could  not  ex>  . 
erci^e;  would  be  unintelligable,  if  by  such  claim  » 
it  was  intended  to  assert  a  right  of  that  sove-  " 
!reign.  In  this  case,  and  under  such  circumstance*, 
It  would  be  in  its  etlect  equivalent  to  the  proposi*. 
lion,  that  a  power  to  confiscate  was  not  intended 
to  be  exercised  at  all;  or  exercised  bv  a  State 
jin  obedience  to  the  requirements  of  Congress  and 
subordinate  to  its  will.  That  would  be  equivalent 
to  a  denial  ot  its  exercise  by  the  Government  ot 
the  Confederaie  States,  and  asserting  it  for  the 
States:  but  at  the  same  time  conceding  to  th«, 
(Irovernment  of  the  Confederate  Stales,  the  dele» 
gaiii>n  of  tho-c  other  powers  by  which  its  exercise 
by  the  Slate  wa-*  controlled  or  prevented.  It  has 
been  stiid  that  il  the  power  to  confiscate  is  in  Con-' 
gre«,  it  would  also  be  controlled  by  the  treaty- 
making  power;  and  thus  the  same  conflict  arise.  > 
But  the  di>tinciion  in  the  two  cases  is  obviou*.  It 
the  power  is  in  the  Slate  as  a  sovereign,  its  exer- 
cise cannot  be  controlled  bv  any  power  in  Con- 
gress :  if  the  control  is  in  Congress,  the  power  is 
not  in  the  State.  But  in  Congress  both  rights  may 
be  vested,  and  no  conflict  can  ari-e;  becau'^e  the 
exercise  of  the  power  which  controls,  suspends  the 
exercise  of  that  which  is  subordinate.  But  not  one 
of  the  re-erved  powers  of  a  Siate  is  subordinate  to 
any  power  delegated  to  the  Confederate  States : 
and  if  a  power  claimed  to  be  so  reserved,  in  its  ex- 
ercise, is  in  conflict  with,  the  Givernmenl  ot  the 
Confederate  States,  in  its  exerci-eot  a  power  dele-' 
g.ited  to  it;  a  case  necessarily  arises  in  which 
either  the  Stale  or  the  Government  of  the  Confed- 
erate States,  has  attempted  the,  exercise  of  a 
power  to  which  it  has  no  claim. 

But  there  are  other  considerations  connected 
wiih  the  practical  exercise  of  this  power  by  the 
Stales  each  in  its  separate  capacity,  which  may  not 
lie  wholly  disregarded.  If  each  State  has  it,  it 
must  be  that  the  State  has  it  as  a  sovereign. — 
Be  It  so.  Each  then  acis  wi.hoiil  regard  to 
other  motives,  purposes  or  interests  than  such  as 
relate  to  itself.  But  in  this  action  of  each  by  itself 
or  lor  itself,  are  consequences  involved  which  af- 
fect all  theothers.  The  peace  which  follows  war  is 
not  esialilished  with  one,  but  with  all.  The  acts  ot 
each  enter  therefore  into  the  consideration  of  those 
who  adjii't  the  terms  upon  which  peace  is  estab- 
lished. If  each  has  the  right  to  exercise  the  power 
to  confiscate  without  regard  to  any  other  question 
than  such  as  may  efiisct  itseli:  the  others  have  a 
corresponding  righi  not  to  be  affected  by  that  con- 
duct, which  has  been  adopted  without  regard  to 
them.  And  thus,  supposing  the  exercise  of  the 
power  practicable  in  each  State,  a  treaty  of  peace 
must  embrace  as  many  different  cases,  as  States, 
which  are  to  b«  affected  by  it;  while  the  Gov- 
ernment would  b>^  forced  to  adopt  the  acts  of  each 
State,  and  bind  all  the  States  for  ihe  acts  of  each, 
to  secure  a  peace:  it  to  that  arrangement  indeed 
all  would  ever  accede 

It  brings  with  it  no  recommendation  to  me,  to 
«ay  that  this  was  the  state  of  things  in  the  war  of 
the  American  Revolution.  It  is  one  thing  to 
admire  the  fortitude  wiih  which  the  difficulties  of 
that  period    were  overcome:  it    is    quite    another 


CONSIDERED  AND  AFFIRMED— MAGRATH,  J. 


87 


ning  to  regard  such   difficulties  as    recommended: 
jam  to  our  voluntary  adoption.  I 

J  have  not  referred  to  the  treaty -making  power! 
a?  the  source  of  that  power  to  confiscate  the 
property  of  piil<lic  enemies,  which  I  have  already 
said  IS  id  the  Congress  of  the  Confederate  Siaies^ 
by  virtue  of  its  po\Ver  to  make  rules  concernino 
captures.  But  I  have  referred  to  it  for  the  purpo?e| 
of  showing,  that  under  the  treaty-making,  Cong«er-s 
has  the  power,  which  has  ever  been  oonstamly. 
exerci>ed  and  wiihout  dispute;  of  providing  toriJie 


enemies,  within  the  territories  of  the  Confederate 
Slates;  i  cannot  sustain  in  the  proposition  which 
challenges  its  constitutionality  or  itfipeuches  its 
validiiyj- 

And  this  now  brings  me  to  the  consideration  of 
ihe  thrd  of  the  leading  propo<*iiions  urged  in  sup- 
port of  the  demurrer.  This  proposiiion,  s-ets  forth, 
that  if  the  others  which  have  been  urged  shall  not 
be  sustained,  this  must-  be:  because  the  pro- 
ceedings contemplated  by  the  Act  are  at  variance 
with    moral   duties    of  the' citizens    of  the    Con- 


disposition  of  the  property  of  public  enemies  in  federate  States,  which  society  enforcfes;  and  vio- 
lime  of  war  Such  treaties,  when  made,  bindi^late  privileges,  which  of  common  right  belong 
the  public  faith:  and  no  disposition    can    be    madelito  such  citizens.  * 

of  any  property  coitriiry  to  their  stipulations.  I  Betbre  I  proceed  to  the  examination  of  these 
have  referred  to  it  for  the  purpose  of  showing,  lobjeciions,  it  will  be  necessary  to  consider  the 
that  the  rights  whu'h  belong;  to  Congress  Uhder  the  principle  of  international  law,  under  the  sanction 
treaty  making  power  are  inconsisient  with  theilof  which,  the  Congress  of  the  Conlederaie  Slatea 
power  claimed    to  be    reserved    to    the    Siate    tollhas  passed  this  Act. 

daiermine,  by  virtue  of  its  iniierent  sovereign  Whatever  may  be  the  moral  rule,  which  society 
power,  the  question  of  confiscation  or  other  adopts,  and  religion  approves  for  the  government  of 
disposition  of  the  property  of  public  enemies  [lindividuals  in  their  social  relations;  thfe  rule  of 
That  thus,  the  argument  which  goes  to  show  that  international  law,  every  where  recognizes  retalia- 
this  power  is  in  the  State,  by  exposing  it  to  the  uon,  as  the  motive  and  measure  of  conduct,  which 
conlYolling  influence  of  another  power  vested  in' circumstances  may  not  only  justify  but  require. 
Congress,  not  only  takes  from  it  the  quality  of  aliThe  iegtslation  of  the  Confederate  States  has  been 
sovereign  power,  in  which  form  it  only  can  exi-il  marked  by  the  public  recognikijn  of  this  principle, 
in  the  State;  but  in  ihis  also,  strips  it  of  the  efleci.  'not  only  in  regard  to  the  property,  but  the  persons 
which  under  the  rule  of  iuiernaiional  law  it  was^  of  al  en  enemies.  By  an  Aft  of  the  Confederate 
intended  to  have.  And  that  the  question  isjICongrefeS,  the  President  .i^s  -lut-horized  to  select 
not  simply  confined  to  the  point,  whether  the  t)owerl.-uch  prisoners  taken  from  -tfte  Uniied  States,  and 
to  confiscate  the  property  of  the  public  enemy  is  inllin  such  numbers  as  he  may  deem  expedient,  upon 
the  Congress  of  the   Confederate    States,  or  in  thePthe  persons  of  whom  he  may  inflict  such  retaliation, 


State:  but  whether  theie  is  such  a  power,  which 
in  time  of  war  can  be  exercised  at  all.  To  a  con- 
clusion upon  that  point  I  should  come,  without 
hesiiaiion,  no  niaiter  whit  might  be  the  inconve- 
nience, it  no  siifhcit-nt  grant  of  it,  could  be  found  in 
the  Coustilutioii.  But  in  that  instrument  I  find  the 
grant,  in  terms  whioh  to  me  seem  to  be  as  express 
A!t  language  can  command.  1  find  this  gram  of 
power,  not  standing  by  itself;  but  accouipanied 
with  express  grants  o(  other  powers,  in  relaiion 
to  kindred  matters:  like  it  counecied  with  tti*- 
great  sovereign  power  to  make  war  and  to  make 
peace.  I  find  thus  the  grants  of  power,  not  only 
embracins   the    princifial   subject-matter:  but  this, 


in  such  measure  and  kind,  as  may  seem  to  him,  just 
and  proper.  (Act  No.  261,  approved ''SOih  August, 
1861. J  This  power  is  everywhere  recognized  as 
belon;;ihg  to  Government;  and  one  which  it  may 
exerciM,  when  in  Its  judgment  it  becomes  neces- 
sary. Under  whatever  term  it  may  be  invoked; 
whether,  retaliation,  reciprocity  or  retorsion,  its 
euil  is  the  same.  It  is  the  same  hard  treatment 
Used  towards  the  subject  of  a  State  or  nation,  as  is 
by  it  used  towards  the  subjects  of  the  Slate  or 
naiion  which  adopts  this  remedy.  It  is  retaliation 
resorted  to  for  the  purpose  of  obtainins:  the  repeal 
of  obnoxious  measures.  (Manning  in.').)  Vattel 
ves  ifi  his  sanction  when  he  says  "there  is  noihing 


and   others    like  it,  not  left  to  implication  as  result- iin  ihis,  but  what   is  tonlbrmable    to  sound  politics. 


ing  from  the  general  grant  ;  but  partii-uiarly 
specified  and  set  lorth  :  and  thus  converted 
into  distinct,  substantive  powers.  In  the  whole 
scope  of  those  provi>ions  which  in  time  of  war, 
by  the  principles  of  international  law,  the  usages  of 
nations,  and  ihe  experience  derived  from  the  past, 
are  revealed  to  us,  as  of  right. 'belonaing  to  a  State 
or  nation,  to  be  used  fjr  its  defence;  none  will 
be  found  more  universally  acknowledged  :  none 
the  value  of  which  is  more  admitted  :  than  the 
right  to  confiscate  the  property  of  the  public 
enemy.  The  same  terms  which  convey  the  power 
#  in  the  Consiimtion  of  the  Coni'ederate  States,  were 


|No  one  can  complain  of  being  treated,  as  he  treats 
others."     (B.  2,  ch.  IS) 

To  understand  and  appreciate  rightly  the  objec* 
tion  urged  aiiainst  the  mode  of  proceeding  adopied 
or  required  by  the  Act,  we  must  <-learly  under- 
stand what  is  that  mode  of  proceeding.  In  the  1st 
Section  it  provides  that  all  and  every  the  lands, 
tenements  and  hereditaments,  goods  and  chattels, 
rig  Ins  and  credits,  wiihin  these  Confederate  States,- 
and  evelry  right  and  interes\  therein,  held,  owned, 
possessed  and  enjoyed  by  or  tor  any  alien  enemy, 
since  the  21>t  May,  A.  D.  1S60,  with  some  excep- 
tions therein  set  forth,  be,  and  the  same'are,  hereby 


used  in  the  Coiistiiution   of    the  United  States  forijseque>iered    by  the    Confederate    Slates      This 
the     same    phrpose.      It     had    a   meaning    in    the,  the  exercise  of  that    power,  the    nature    of  which 


Consiiiution  of  the  United    States  not  only  plainly 
expressed   by  the  terms  which    were  used  :  but  byl 


under   (he    rules   of   iniernaiional    law,   and     the 
extent  dtid  obligations  of  which   under  the  rule  of 


judicial  language  in  which  it  had  been  interpreted  :j  constimlional  law,  I  have  already  considered.  It 
and  by treatystipulaiionsand  legislative  enactment  lis  a  lawijl  exercise  to  this  exient  of  power,  dele- 
in  relation  toils  subject-mater.  The  same  Congress  gated  t<r  a  Government,  organized  in  its  depari- 
of  the  ConfeiJerate  Slates  l>y  which  the  Constitu-  ments,  ^d  acting  by,  as  U  rests  upon,  the  support 
tion  had  been  framed;  wiihin  a  few  months  after  of  the  t.'4verned. 

'     ■    preparation   of  that   charter;  enact  this   law.'j     By  thij  declaration  of  its   will,   ti.e    Government 

which  they    make   almost   a  contemporaneous  of  the  Ciinlederate  Stales    has   established    a   law 

I'osiiion  of  its    meaning.      Under   such  circum  [  for  the  dlizeiis  who    are  under  its  protection  and 

iices,    wiih    not    the   slightest    doubt   that    the;  subject  lb  its  authority.    The  2d  Section  pioceeds, 

•wer  is  in  the  Congress  of  the  Confederate  States'liherefure,  to  define  the  duty  of  the    citizen  under 

to  confiscat*  in  time  of  war,  the  property  of  public  the  newf-elations  which  have  been  impo.sed  by  the 


reture,  to  ueni 
newprelationii 

r 


58 


THE  SEaUESTRATION  ACT 


1st  Section  of  the  Acl:  and  declares  such  duty,  fori 
each  and  every  cmzen,  to  consist  in  giving  to 
the  ollii-ers  charged  with  the  execution  ol  this  law, | 
such  int'ormaiion  as  he  may  have  of  the  |>ropeyty.] 
esiaie  and  efleeis  mentioned  in  the  1st  StCioQ,.       ; 

^With  this  deciaraiion  of  what  it  consi<ier.>  the' 
duty  of  each  and  every  citizen,  the2d  Section  stops. 

The  3d  Section  is  more  direct:  and  is  aildressed 
10  any  and  every  person  hoidinsj  or  coiiiro|Hng 
such  estate,  properly  and  ettects,  as  by  the  Isi 
Section,  liaije  been  declared  to  be  sequestered,— 
And  it  directs  that  the  person  so  bo. ding  or 
controlling  ^  such  property,  es;aie  or  elleci>. 
shall  give  information  tnereof  to  the  Receiver. 
Lfpon  ibis  being  done,  It  ai-quits  him  of  all  respon- 
sibility for  the  properly  which  he  has  hel^  or 
controlled.  But  a  willful  lailure  to  give  stich^  in- 
t'ormaiion and  do  what  is  provided  to  be  clon^  by 
him,  subjects  bim  lo  certain   penalties. 

By  the  7th  Section,  if  the  person  holding,  or 
controlling  such  properly,  estate  and  eflecls,  skall 
claim  an  interest  therein,  he  shall  be  admilieii  to 
dei'end  the  case  to  the  e.x.ient  of  his  interest.     -^ 

But  to  secure  to  the  Government  of  the  Conjed. 
erale  States  the  benefits  of  the  Acl,  and  perhaE^to 
relieve  the  unwillinaness  of  persons  to  discover; 
by  enforcing  through  judicial  proceedings  Ihe 
obligation  which  ihe  Act  imposes  ;  in  the  8Ux  Sec- 
tion, the  Receiver  is  authorized  to  ohtain  fiom.Jihe 
Clerk  of  the  Court,  a  'VVrit  of  Garnishment  directed 
to  one  or  more  persons,  commanding  theiUj  to 
appear  and  answer,  what  properly  or  eflecis  of  .any 
alien  enemy,  he  had  at  ihe  service  of  the  process; 
or  since  has  had  under  nis  possession  or  control, 
belonging  to  or  held  for  an  alien  enemy  :  anjj  in 
what  sum,  at  the  times  mentioned  he  was  indebted 
to  an  alien  enemy.  i 

If  by  either  of  these  three  modes;  that  isMhe 
voluntary  statement  ot  a  person  in  dis^hargt^  of 
what  in  the  1st  Section  is  lermed  his  duty  :  oi;,lhe 
statement  required  of  him  in  the  3rd  Seciion 
because  lie  is  holding  or  conirolling  the  property: 
or  the  answer  made  by  hiin  to  the  VVrit  o) 
Garnishment  which  issues  under  the  8ili  S.  ciion  : 
property,  estate  or  eflecis  ol  an  alien  eu\nivaie 
disc'veied  :  a  petition  i.s  filed  against  the  siime,  to 
which  are  parties  all  who  have  an  interest,  lien  or 
<-.laim  ill  the  propeny;  and  loa  jury  is  subinitled  the; 
quesiioii:  and  iheir  verdict  decides,  whether  the! 
person,  as  alleged  is  an  alien  enemy;  and  whether 
the  property,  estate  and  elfecls  iiieniioued  in  the 
petition  do  belong  to  such  alien  enemy.  Such  may 
be  said  to  be  a  concise  statement  ol  the  proceed- 
ings which  take  place  in  a  case  of  seqiiesiiiUioa. 

This  proceeding  or  so  much  of  it  as  seems  lo  seek 
discoveiy  or  information,  either  by  the  declai  aiion 
of  what  IS  the  duly  of  the.  citizen,  or  the  process 
lermed  a  Writ  orGarnishiiicni,ischielly  objected  to. 
The  penaliies  which  the  Act  provides  are 
in  the  3d  Section,  and  in  ihe  8th  Section;  and 
these  manilestly  relate  to  persons  who  have 
in  their  possession  or  control  propeny  sub- 
ject to  sequesiration,  a.id  willfully  conceal  the 
same.  From  such  persons  a  discovery  is  unques- 
tionably exacted  :  and  upon  such  persons  for 
willful  concealment,  pains  and  penaliies  are  un- 
doubtedly provided 

Is  '<uch  a  proceeding  unusual  in  cases  in  whichby 
the  authority  of  the  Government,  contiscation  or 
sequestration  is  declared  ?  In  South  Carolina  in 
n&2,  when  its  law  of  confiscation  was  p.issed,  il 
was  a  part  of  that  law,  that  any  one  who  shall 
remove,  aid,  or  assist  in  the  removal  of  any  part  of 
tbeproperty   t''::ereby   confiscated  ;  or  conceal  ib« 


same  with  intent  to  defraud  the  public,  shall  be 
hell  guilty  of  felony,  and  upon  conviction  shall 
suffer  death.  (4  Siatute  at  Large  516.}  And  in 
the  same  Act,  power  was  given  to  the  Com- 
missioners in  whom  confiscated  estates  were  vested 
10  demand  from  the  owners  of  adjacent  lands  to  such 
as  Were  vested  in  the  Slate  by  the  Act  of  Confis- 
cation, their  plats  :  and  such  owners  were  bound 
io  deliver  copies  to  the  said  Commissioners  at  iheir 
own  expense:  or  testify  upon  oath  or  afiirma- 
lion  that  they  nei'her  have,  nor  can  obtain  the  plats 
lequired..  In  default  of  such  plats  the  Commis- 
sioners should  cause  the  lands  to  be  surveyed,  and 
plats  made  according  to  the  best  information  they 
could  procure  :  and  such  plats  were  lo  be  deemed 
[conclusive  of  the  claims  of  the  owners  of  adjacent 
lands.     (lb.  p.  622,  sec.  20  ) 

By  the  Gonfiscaiion  Act  of  the  State  of  Georgia 
Ihe  Commissioners  were  empowered  to  send  their 
[precept  to  any  person  lo  appear  before  them  :  and 
[for  all  such  boolcs,  papers,  writings  and  authenti- 
[cated  copies  of  recordsas  ihey  aiis;hilhink  necessa- 
ry :  and  administer  o.uhs  for  the  belter  discovery  of 
the  truth  of  the  enquiries  made  of  them,  lo  be 
made  by  any  person  concerned  or  any  person 
whatsoever:  Sheriffs  were  required  to  obey  and 
execute  such  orders  and  precepts ;  and  persons 
ref  singlo  at»f)ear  and  answer  might  be  committed 
10  jail,  10  remain  without  bail  until  they  conlortn. 
Per>ons  indebted  who  njgglected  to  discover  and 
make  known  ihe  same  lothe  Commissioners  forfeif- 
ed  double  the  value  of  suchdebis.  Similar  provis- 
ion was  mnde  in  the  case  of  persons  having 
in  'their  possession,  custody  or  power,  property 
sul  ject  to  confiscation,  and  negleciing  to  discover 
ihe  same.  Debts  under  this  Act  were  sequester- 
ed. And  the  willful  or  inieniional  concealment  or 
embezzling  any  part  of  a  confiscated  estate,  or 
convening  the  same  to  one'.s  use  wiih  intent  to 
defraud  the  Slate  and  prevent  the  Commissioners 
from  selling  the  same,  was  declared  to  be  a  felony, 
puni>hable  wiih  death.  (Prince's  Dig.,  pp.  73  to  86, 
el  .spq  ) 

li  IS  not  convenient  for  me  to  refer  lo  the  Con- 
fiscation Acts  of  any  other  States:  these,  however, 
referred  to,  and  which  were  tlief  laws  of  South 
Carolina  and  Georgia,  show  that  however  strin- 
gent miy  be  the  provisions  ot  this  Acl  of  the  Con; 
lederate  Congre-s;  they  are  not  equal  in  striu- 
geiicy  to  tho.-e  provisions  which  were  o(  lorce  in 
I  his  State,  when  once  before  it  was  considered 
necessary  to  re.-ort  lo  this  exireme  measure  of 
legislaiion. 

But  before  censure  is  ca»t  upoii  the  measures 
which  have  been  adopted  under  any  of  the>e  Act.-i 
it  will  be  proper  to  understand  upon  whom,  and 
lor  what  purposes,  such  provisions  were  made. 
The  State  had  passed  an  Act  conliscaiing  the 
estates  of  those  who  were  the  subjects  of 
its  enemy.  What  is  the  effect  of  such  an  Act? 
By  It  the  right  of  property,  which  before  the  i 
passage  of'  tlie  Act,  was  in  the  several  persons 
thereto  entitled,  accordiiisr  to  the  proper  esiate  or 
interest  of  each,  became  divested.  a.s,to  such  per- 
sons, and  vested  in  Ihe  Siate.  To  this  esiate  01* 
interest  in  such  propeny,  the  State,  by  the 
lerms  of  the  Act:  became  as  completely,  abso- 
lutely and  latvfiilly  the  owner  of  such  estate  or 
interest;  as  any  individual  would  or^  could  have 
been,  by  a  transfer  of  such  esiate,  or  interest 
upon  valuable  consideration.  If  a  cestui  que 
use  competent  to  transfer  the  interest  which 
he  has  in  the  properly  subject  to  the  use,  shall  do 
so;  the  trustee  as  to   him  owes  no  lurther  duty  or 


CONSIDERED  AND  AFFIRM 


ED. 


-MAG RATH.  J. 


59 


obligation:  it  is  to  the  person  who  has  become 
entitled  under  the  tran>rer,  that  his  legal  and 
equitable  duties  are  iran.slerred.  W  the  estate 
or  the  interest  of  the  cestui  que  use,  passes  from 
him,  not  by  his  voluntary  act,  but  by  the  operation 
ot  law:  it  it  is  made  liable  to  the  cliiim  of  ajuds- 
ment  creditor,  who  in  a  Court  of  lav\',  upon  a  con- 
tract the  most  hard,  or  penally  the  most  severe,  has 
in  that  Court  been  declared  eniitled  lo  recover;  tiie 
duues  of  that  trustee,  would  be  under  the  order  of 
a  Court  of  Equity,  and  siitinjif  as  a  court  of  coii-^ 
science,  transferred  to  him  who  had  been  thus,  byt 
operation  o(  law,  substituted  for  him,  lo  whom  his; 
duly  at  first  had  been  eng^iged.  The  same  priaoi  ] 
pie  underlies  the  whole  proceeding  undef  an  Act| 
Jor  confiscation  or  sequestration.  The  Govern  | 
ment  has  succeeded  to  all  the  estates  and  iiUer-j 
esis  of  ihe  alien  enemy.  lis  liile  is  complete,  lii 
may  bie  neces.-ary  or  it  may  not  he  necessary  to] 
secure  the  possession  by  |)roctedini!:s  ancillary  to' 
the  Act.  But  those  proceedmgs  do  not  make  the] 
estate  or  interest  liable  to  the  confiscation  or  se-^ 
questration:  they  only  establish  the  fact  that  such 
an  e>taie  or  interest,  by  virtue  of  the  Act,  belongs 
lo  the  Government. 

When,  iherelore,  it  is  sugjrested,  that  in  dechir^' 
'ingii  to  be  the  duty  of  a  ciiizeii  to  give  informa  i 
tion  of  properly  subject  to  sequesiraiion,  iin  odious 
and  immoral  service  was  imposed;  it  is  proper  tO: 
reler  lo  the  language  in  which  the  duty  is  so  im[ 
posed.  The  property,  estate  or  effects  are  withouti 
the  inforiiiation  of  any  one,  declared  to  be  seques-' 
tfBled.  Other  proceedings  only  servi-  to  ideniifyi 
such  properly  :  they  add  nothing  to  the  efieci  otihe, 
Act;  thai  has  already  changed  the  property.  Il(..j 
the  Act  of  Confiscationlilready  referred  to,  it  will' 
be  seen,  that  it  considers  the  '  withholding  ol 
information  as  the  concealment  of  thai  to  which 
the  Stale  was  entitled  Nor  the  discovery  ot  ihat,i 
which  by  being  brought  to  light,  assisted  the  Slatej 
to  confiscate  :  but  the  concealment  of  that  which 
the  State  had  by  its  Act  already  declared  <o  bel 
confiscated.  And  if  so  confiscated,  vesled  in  that 
Stale,  by  as  perfect  title  as  could  be  made.  These 
Acts  tberelbre  considered  the  refusal  lo  give  in- 
formation, as  the  concealment  from  the  Stale  ol 
that  which  iielonged  toil. 

The  reading  of  the  Sequestration  Act  of  the  Con 
federate  Slates  shows  plainly  that  this  was  also  the 
manner  in  which  it  declared  the  duty  ot  the  citi- 
zen. It  did  not  command  him  to  discover,  that  the 
Government  might  seques'er  :  but  it  i-ommanded! 
him  to  discover  what  it  had  already  sequestrated 
It  did  not  command  him  todiscover  that  which  was 
at  the  time  of  iH  being  discovered,  the  property  of 
another  :  but  it  commanded  him  to  discover  thai 
whii-h  had  become  its  properly.  j 

The  question,  therefore,  is  reduced  to  the  lawful: 
character  of  that  title  which  the  Government 
asserts.  It  tht;  Government  has  acquired  a  lawfuli 
tale  to  ihat  which  was  the  property  of  ihe  alien 
tsnemy:  if  Ihat  liile  ;»  admitted:  it,  of  course. j 
draws  after  it  the  right  to  all  that  is  accessorial  to' 
it  The  right  lo  the  possession  of  that  of  which  aj 
lawful  right  of  property  has  been  acquired,  cannot 
be  doubled.  If  the  right  to  the  posses>ion  is 
doubted,  u  may  be,  b<;oause  ali hough  the  Govern- 
ment lias  the  right  of  proprriy,  it  has  not  the  right 
of  possession:  or  because  it  has  not  the  right  of 
pn^peny.  But  it  will  not  be  denied  that  if  the 
Government  has  the  right  of  property,  it  has  the 
right  of  possession:  unless  that  possession  is  a 
right,  ill  the  nature  of  an  estate  or  interest,  saved 
to  the  person  who  may  be  eniitled  to  it.  under   the 


terms  of  the  Act.  No  such  case  is  before  me  I 
haveto.^leal  with  the  case  ia  which,  if  the  Govern- 
ment h^  the  righi  of  property;  the  right  of  posses- 
>ion  would  attach  thereto,  as  a  legal  conse(]iience. 
In  such  a  case,  to  deny  the  right  of  possession,  is 
to  denythe  right  of  property  :  to  deny  the  right  of 
property  is  lo  deny  the  title  which  the  Government 
has  claimed  to  establish  :  to  deny  that  liile  is  lo 
deny  the  power  and  aut,horiiy  to  confiscate  aad 
sequeter  the  properly  of  its  public  enynies. 

It  the  Government  has  then  a  right  of  properly, 
and  also  a  right  of  |iO'*se:t-'iou  to  that  which  is  the 
thing  sequestrated,  it  considers  the  person  whfo 
has  ihe  possession  or  control  of  Ihn  thina;  and 
does  not  give  information  of  it;  as  withholding  it 
(rom  the  public  use:  and  in  so  doing  denying 
the  public  righi.  The  denial  or  obstruction  of  a 
public  right,  is  a  public  wrong:  and  a  public  wrong 
is  redressed  by  indictment.  Under  this  Act  it  is 
classed  as  a  misdemeanor,  and  punished  by  fine 
and  inaprisonmeni. 

I  When  I  have  said  that  by  the  Act  of  the  Con 
Jederale  Congress  ihe  property,  if  it  be  the  pro- 
perly of  nn  alien  enemy  is,  liy  that  Act,  sequester- 
led,  I  have  lo  refer  only  lo  the  terms  of  the  Act.  It 
idtjclares  that  such  property  as  it  describes  "be and 
the  salne  are  hereby  sequesteredi"  The  Confisca- 
tion Act  of  the  Stale  of  Maryland  declared  that  the 
pmperty  to  which  it  referred,  "shall  be  seized  and 
if  liereby  contiscated  to  ihe  use  of  the  Slate."  In 
Sniiih  Vs.  Stale  of  Maryland,  (G  Cranch,  286,)  seve- 
r.tl  queflioiis  were  made:  one  of  the  questions  was 
whether  the  interest  of  a  cexttii  que  use  was 
liable  10  confiscation  under  the  Act.  The  Court 
said  the  Act  divested  the  whole  estate  ot  the 
former  owner  and  vesled  it  in  the  State:  tllat  when 
the  Aot  used  the  term  properly,  it  meant  the  thing 
it-elf  10  be  affeyled  l)y  ihe  law,, whether  land  or 
personal  property.  That  the  thing  itself  ceased  by 
ihe  operations  of  these  laws  to  belong  to  the 
I3ritish  subject,  and  became  vesled  in  the  Commis- 
sioners for  the  use  of  the  State.  That  the  cestvt 
que  use  alihougn  not  in  possession  of  the  prope'rty 
w'as  nevertheless  the  real  owner  of  it;  and  if  the 
Commissioners  had  come  into  possession  of  it,  no 
scintilla  of  interest  could  ha-ve  remained  in  the 
crstuiqtieM'i.^.  But  that  no  act  ol'ihe  Comuiissioners 
Was  necessary  to  obtain  the  seizure  of  ihe  land, 
to  support  ilie  use  so  iransfr)rmed  from  the  cestui 
que  use  lo  ihe  State:  and  no  seizu-e  was  necessary. 
Thai  by  the  mere  operation  of  the  law  all  property 
of  Hriiish  subjects  was  to  be  held  as  seized  and 
confiscated:  and  the  Commissioners  to  be  con- 
sidered in  ihe  lull  and  actual  seizure  and  posses- 
sion of  the  pro))eriy  so  seized,  although  no  entry 
or  other  act.  had  or  should  be  made  or  done. 

Thelengihof  thisopinion,  forbidsmetoenterupon 
the  consideration  of  other  matters  which  have 
been  urged  in  the  argument.  The  conclusion 
to  which  I  have  come  upon  such  matters  will  be 
expressed  in  the  opinions  I  shall  lake  occasion  to 
give,  in  the  other  cases  which  have  been  argued 
iielbre  me:  and  in  which  these  matters  were  more 
direcilf  discussed.  In  these  cases,  1  have  fell  thai 
it  wasHue  to  those  who  made  belore  me  ihe  ques- 
tion n<»v  decided:  who  are  with  me  engaged  in  the 
endeai  )r  to  administer  justice  according  lo  the 
Consii  jiion  and  laws  of  these  Coiitederaie  Slates: 
and  wl  jse  earnestness  attested  the  sincerity  of  the 
opinioi  they  urged  upon  me;  to  stale,  alihougn 
|at  gre  ler  length  than  is  usual;  but  not  greater 
than  V  as  necessary  for  their  full  explanation;  the 
Iconsidi  rations  which  have  weighed  with  me,  in 
Irefusir  f  to  sustain  the  demurrer  they  have  filed. 


THE  MOPES  OF  PROCEEDING 

UNDER  THE  EIGHTH  SECTION  OF  THE  SEQUESTEATION  ACT, 
CONSIDERED  AND  SUSTAINED. 

Ml^        !!♦-    ^  

IN  THE  COIN^FEDERATE  COURT, 

SOUTH    CAROLINA    DISTRICT. 

THE  CONFEDEEATE  STATES,  vs,  EDWARD  McCKADY. 


MAGRATH— J. 

The  exceptions  taken  in  this  case  to  the  Writ  ofj 
Garnishment,  and  upon  which  is  rested  the  motion 
to  quash  the  Writ,  seem  to  me  to  be  founded  on  a 
misapprehension  of  the  nature  of  the  process,  a> 
well  as  of  the  efl'ect,  which  under  the  Act  directing! 
it  to  be  issued,  was  intended  to  result  from  itsser- 
vice.  '  ,       j 

By  the  fifth  Section  of  the  Act  the  Clerk  ofthel 
Courtis  directed  to  issue  Writs  of  Garnishment, 
at  the  request  of  the  Receiver,  directed  to  one  or 
more  persons,  commanding  them  to  appear  at  the 
then  sitting,  or  at'any  future  term  of  the  Couri: 
and  to  answer  upon  oath  what  property  or  effects' 
ot  any  alien  enemy  he  had  at  the  service  of  the| 
process  or  since  has  had  under  his  po.'-'session  or, 
control;  belongmg  to  or  held  lor  an  alien  enemy. 
And  ihe  Receiver  may  test  the  truth  of  the  returnj 
made  b^  a  garnishee  by  filing  a  statement  under 
oath  that  be  believes  the  answer  to  be  untrue; 
specifying  the  particulars  in  which  he  believes  the 
garnishee  has  by  commission  or  omis&ion  not  an- 
swered truly.  And  in  all  cases  of  litigation  under 
this  Act  the  Receiver  may  propound  intefroffato- 
ries  to  the  adverse  party  touching  any  matter  in- 
volved in  the  litigation:  a  copy  of  which  shall  be 
served  on  the  adverse  parly,  and  they  shall  be 
answered  under  oath  within  thirty  days  after  such 
service.  Upon  failure  to  do  so  the  Conn  shall 
make  such  disposition  of  the  cause  as  shall  seem 
most  promotive  of  justice.  And  if  an  answer 
deemed  necessary  to  secure  a  discovery,  the 
Court  may  imprison  the  party  in  default,  until  lu 
answer  is  made. 

By  the  sixteenth  Section  ol  the  Act  the  Attorney- 
General  is  directed  to  prescribe  such  uniform 
rules  of  proceeding  under  this  Act,  not  in  the  Act 
otherwise  provided;  as  shall  meet  the  necessity  ol 
the  case. 

The  Attorney-General,  in  pursuance  of  this 
authority,  has  by  his  instructions  to  Receivers 
directed  them  forthwith  to  apply  to  the  Clerk 
of  the  Court  for  Writs  ^of  Garnishment,  under  the 
filth  Section  oJ  the  Act;  and  to  propound  to  the 
garnishees  ceitain  interrogatories,  which  are  here 
endorfcd  upon  the  Writ,  and  answers  to  which  are 
required  in  the  Writ. 

I  have  considered  the  modes  of  proceeding 
adopted  by  the  Aci;  and  cannot  regard  ihem  ob- 
noxious to  the  cen>ure,  or  impeached  by  the  ob- 
jections, which  have  been  expressed  or  urged. 

If  we  refer  to  the  Constiiution,  it  will  be  seen 
that  the  judicial  power  extends  to  all  cases  of  law 
and  equity,  arising  under  this  Consiituiion,  the 
laws  ot  the  United  Stales  and  of  this  Coniederacy, 
and  treaties  ma«'e  or  which  shall  be  made  under 
Its  authority:  and  among  other  matters  of  which 
'there  is  a  special  enumeration;  to  cbntro'Versies  to 


which  the  Confederacy   shall  be   a  party.  (Art.  3, 
:Sec.  2.) 

A  ca.'e  is  said  to  arise  within  the  meaning  a|' 
the  Constitution  whenever  a  question  respecting 
the  Constitution,  laws  or  treaties  ol  the  Confede- 
rate States  has  assumed  such  a  form  that  the 
judicial  power  is  capable  ol  acting  upon  it.  That 
power  is  capable  of  actii  g,  when  the  subject 
matter  is  submitted  to  it,  by  a  party  who  asserts" 
jhis  rights,  in  the  form  prescribed  by  law.  (Curtis' 
IComm.  Con.,  p.  5.)  So  also  a  case  is  said  to  arise 
under  the  Constitution,  laws,  or  treaties  of  the 
Confederate  States,  when  the  constiuction  ol 
either  is  involved  in  .i  correct  decision,  (p.  6.) 

A  suit  is  the  prosecution  or  pursuit  of  some 
claim,  demand,  or  request.  In  legal  parlance,  il  is 
the  prosecution  of  some  demand  in  a  Court  of  Jifs- 
tice    (Curtis,  p  64.) 

if,  as  has  been  said,  a  case  is  said  to  arise  where 
it  is  in  a  form  in  which  the  judicial  power  can  act 
upon  it,  this  affords  the  proper  beginning  /or  the 
examination  of  the  objections  urged  in  this  case. 

It  has  been  already  decided  that  by  the  terms  of 
the  Sequestration  Act,  the  property  of  the  alien 
enemy  is  divested  of  the  title  which  he  had;  and  as 
good  a  title  as  he  could  convey  is  vested  in  the 
Confederate  States. 

To  give  effect  to  the  Act,  two  circumstances 
were  waniinic:  to  di.>^cover  the  property  so  vested 
in  the  Conlederaie  States;  and  by  judicial  proceed- 
ings to  establish  by  the  judgment  ot  a  competent 
Court  the  (act  that  it  is  the  property  so  seque.-tered. 

To  discover  the  property  the  Act  directs  a  Writ 
of  Garnishment  to  issue.  There  are  three  ends 
which  are  accomplished  by  Ihe  Writ.  1.  The  party 
who  has  such  property  is  notified  by  the  service  ol 
the  process  of  the  title  of  the  Government.  2. 
The  nature  of  the  process  affects  the  prqperty 
in  the  manner,  ot  which  Sir  William  Scott 
has  spoken;  when  he  refers  to  some  proceed- 
ings to  reduce  such  property  into  possession. 
3.  By  the  service  of  the  Writ,  evidence  is  to 
some  extent  secured  in  proof  of  wilful  neglect 
in  not  making  discovery  of  the  pn  periy:  if  the 
person  upon  whom  the  Writ  is  served  shall  after* 
wards  be  indicted  under  the  third  Section  of  the  . 
Act. 

But  it  is  said  that  the  form  of  the  Writ  is  not  regu- 
lar :  that  it  should  be  against  a  person  certain  :  that 
the  defendant  in  this  case  must  be  the  alienenemy. 

It  is  only  necessary  to  analyze  the  objection  to 
see  that  it  involves  this  proposition  ;  that  until  it 
is  discovered  who  is  the  alien  enemy  having  pro- 
perty in  the  possession  of  a  citizen  of  the  Confed- 
erate States  ;  no  proceeding  can  be  had  to  seques- 
trate that  properly.  And  ih  t  therefore  a  citizen  ol 
the  Conlederate  States  may  remain  in  the  uninter 
rupted  enjoyment  of  property,  to  which  he    has  no 


THE  SEQUESTRATION  ACT— MAGRATH,  J. 


61 


right  or  claim  ;  and  the  Confederate  both  right  andi'rights,  which  do  not  affect  the  person  or  property 
claim  ;  unlcfS  ihe  Confederate  State:'  can  fir,-*t  dis-  of  its  citizens,  but  U'hich  should  subject  it  to  so 
cover  the  naaie  ofthe  alien  enemy  whose  property  much  objection? 

is  so  held  :  and  then  issue  its  process  to  reduce|j  If  we  compare  it  with  other  powers  which  are 
ii  into  pos-sessiori.  j|daily  exercised  by   the  Government   in  other  mat- 

Such  a  proposition,  however,  cannot  be  se-j  ters,  and  which  must  be  eserciSfd-  without  which 
riousiy  urged.  It  would  be  obnoxious  to  manyj,Governtiieni  would  be  powerle.-s:  and  to  which 
objections    far    too    serious  "/ind    s-irikiog    not   to  there  never  has   been    objection:  it    will    be    siill 


be  readily  apprehended.  Bu^  of  one,  which  be 
cause  ot  its  public  nature;  and  to  which  it  is  in 
direct  opposition  mention  must  he  made.  It  in 
volves  the  right  of  a  citizen,  i  ot  only  to  withhold 
his  aid  to  his  Government  in  the  ascertaiimieni  i.l 
its  rights  :  but  moreover  to  oppose  bis  Governmeni 


more  clearly  seen  how  much  of  mi«appiehen>ion 
Ihere  is  in  the  objection  to  this  proceeding.  The 
i-ase  of  the  Revt- nue  Laws  perhaps  furnish  an  apt 
illustration  By  these  laws  full  power  and  auifco- 
riiy  is  given  to  certain  pers  ns  to  enter  any  ship  or 
ves8e|in  which   they  have    rrason  to  suspect   any 


in  the  attempt  it  makes  to  become  p*ses«fd  ot 'aoods,  wares  and  merchandise  are  concealed, 
tho«e  rights.  Such  a  princiile  is  directly  at  war  .which  are  subject  to  duiy :  and  to  send  (or,  seize 
with  all  the  obligations  which  those  who  live  iindcrl  ^md  secure  the  same  :  and  if  they  have  reason  to 
the  pro'ection  ot  a  Government  owe  to.ils  welfare  '  suspect  such  concealment  in  a  particular  dwelling 
It  strikes  at  once  at  tfie  duty  of  obedience  enjoined,  luiuse,  store,  building  or  other  place,  upon  appli- 
upon  those  who  acknowledge  the  lawful  auihoriiy  caiioo  to  the  propt-r  otficer,  they  sha'l  have  a  war- 
ol  Governmeni.  i  rant  to  enter  such  house,  store,    buildini;.  or  oiher 

And  if  the  [iroceeding  were  irregular,  at  whose 'p  ace  in  the  day  time,  and  search  for  such  goods, 
cost  is  the  irregu  ariiy  ?  Nothing  is  asked  of  ihe'  And  to  recivc,  conceal,  or  buy  goods,  wares  and 
citizen  otlhe  (Joniederate  Slates  which  he  clams  inert  haiulise,  knowing  them  to  l>e  i'legaily  import- 
to  l)e  his.  Nothing  is  done  to  him,  because  oi  cd  and  liaMe  to  seizur.  ;  upon  conviction,  dpaws 
aught  which  he  claims  as  his  property.  His  per  Ijwnh  it  a  penally  of  doub'e  the  amount  or  value  ol 
son  is  not  touched— his  house  is  not  searched— hisj|-uch  good-,  wares  and  incrchandi-e.  And  \hiv 
effects  are  not  seized— but  the  Government  oi  his' pcwer.  so  much  more  severe  than  the  process  ob« 
couniiy,  sends  to  him.  its  command,  to  deliver  t<yj.-cted  to  under  this  Act,  is  rendered  necessary;  be- 
lts Treasury  the  properly,  if  such  he  has,  of  its  [cause  the  good-,  ware*  and  merbhamlise  reierred 
enemies,  lis  enemie-,  who  are  h's  ent'mies  :  with' ti.  are  by  the  law  d^-i  Inred  to  be  liable  to  be  for- 
whom  not  only  by  us  law.  but  the  l.iw  of  every  na  iciied  and  condemned  lor  the  Govf-rnment. 
tion,  the  law  ofthe  world,  he  is  (orbidd.  n  to  have!;  I  have  said  that  the  object  of  'he  Government  is 
intercourse  or  hold  relations  of  any  kind  1 1  no 'to  dscover  ihe  properly.  There  are  other  mea- 
process  had  i-sued.  what  is  his  duty  ?  If  the  Con-j'snres  which,  under  sinii'ar  Acts,  have  been  adopt- 
gre-s  diu  not  direct  ■' demand  to  be  nmde  upon cl  (or  this  end,  which  are  not  introduced  into  this, 
him,  what  demand  does  he  make  upon  him>el(,  In  some  Acis  informers  are  encouraged.  It  is  not 
when  he  discovers  that  property  which  he  has  in  -o  in  this:  and  I  am  glad  that  it  is  so.  The 
his  possesion,  and  which  ht  supposed  beljn>;ed  toj  execution  ol  the  Act,  Is  in  the  first  phce  commit- 
one,  is  by  the  law  of  the  land  deviated  to  belong 'opt- d  t)  the  cnizen-«  of  these  Sates.  It  is  not  per- 
anoiher?  Is  there  not  a  law,  not  promu'ged  by  iintledthat  the  possession  ofthe  property  fht'll  be 
mere  earthly  legi.-lation,  which  teaches  him  to  yiel!  i(li-turbed;  until  the  verdict  ol  a- Jury  has  esiab- 
up  that  to  which  he  has  no  right;  andto  which  some'|li>hed  the  fact  that  U  is  the  properiy  of  an  alien 
other  has  lau  ful  claim  ?     And  is  thai  obligation  lessj  enemy. 

solemn  when  his  country  is  to  be  benefiied  by  iisj  1  con»ider  the  Writ  sii«h  a  Wiit  as  the  Act  di- 
observiince,  than  when  an  individual  claim  the  ad-  reels  to  be  issued  :  and  1  consider  thai  Congress 
vantage  of  it  ?  had    perfect   auihoriiy    to   prescribe    the   form    in 

Bui  the  process  is  not  irregular:  it  is  in  the  onl>  which  the  Wni  should  issue  The  power  ol  Con- 
form in  which  it  can  be  regular.  The  pioceeding  gress  to  adopt  rules  and  |>re-ci  ibelbrm- of  proceed- 
when  it  conies  before  the  Court  ut)on  the  petition  in;?  (or  the  l^'ourts  of  the  Confederate  States,  is  too 
and  the  siibsequeiit  pleadings,  is  not  properl\  lear  to  need  argument  to  support  it.  Beers  vs. 
against  the  alien  enemy;  but  against  his  property  Haughton,  0  Pet  Rr.  329.  Bank  U.  S.  vs.  Hal-lead, 
estate  and  eflecis.     The  alien  enemy  is  not  brougiit   10  Wheai.  R   51. 

into  Court:  he  cannot  be  so  brought.  It  is  his  pro  '  U  might  have  been  that  in  much  shorter  space,  the 
perty.  estate  and  effects,  which  are  wiihin  Ihe  ter  resub  ot  this  opinion  could  have  been  announced, 
ntorial  limits  of  tie  Conlederaie  Stales;  and  are  I  have  noi  thought,  however,  labor  or  lime  mis- 
sought  to  be  identified,  that  only  are  before  the  -pent,  which  would  or  might  have  the  effect  of  re- 
Court.  And  the  proceedings,  there(or« ,  are  in  this  moving  the  misapprehensions  ofthe  proceedings 
respect,  muc:,  more  similar  to  an  information  on  under  this  Act.  In  this,  and  in  all  case*  I  admire 
the  criminal  side,  by  which  the  forleiuue  of  goods  ihe  injnnctions  cf  one;  who  was  a  Judge  ofthe 
is  sought:  or  a  proceeding  in  the  Admiralty  by  highest  reputaiioi^^  and  declared  thtit  the  high- 
Which  the  rf.5  is  submitted  lo  judicial  invesiigaiion:  est  olijigaiion  of  a  Judge  was  to  do  ju-tice  ;  and 
than  the  case  to  which  a  similiiude  has  been  made,  then  i<ido  that  justice  in  a  manner  which  should 
of  an  aitachraeot  at  common  law,  against  an  absent  give  saislaction  to  a  reasonable  person.  The  p.o- 
deblor.  #  ceedinis  under  the  Act  have  been  pres.'ed  in  argu- 

And  even  in  the  case  of  a  garnishee  ifl  Attach  ineni  tithe  point,  where  it  was  supposed  the  illus- 
ment,  it  is  perleciiv  well  seiiled  that  he  cannoi|  tration  if  their  tendency  and  operation  was  to  be 
except  to  the  regularity  of  the  process  by  which  found  i  the  records  of  the  Court  of  the  Star 
he  is  brought  and  compelled  to  answer;  mder  the  Chamb  r.  I  know  what  that  Court  was:  and  I 
penally  in  case  of  default  of  being  made  liable  (or  know  \  hat  this  Court  is.  And  I  make  no  violent 
the  debt;  what  properly  he  has  m  bis  possession  assumf  ion  when  I  ^ay  that  no  process  which  can 
or  control,  of  the  absent  debtor  Ii  may  well  be  issue  (i  m  this  Court,  will  find  its  precedent  or  its 
asked  what  there  is  in  this  proceeding  of  the  Gov  sanctio  ,  in  those  which  have  given  Ij  that  Court 
ernment  of  the  Confederate  Stales  to  secure  itsliits  unei  viable  reputation. 


PRIVILEGE  OE  ATTORNEYS  DISCUSSED  AND  ALLOWED. 


CONFEDERATE  STATES,  r.s.  JAMES  AT.  WILKINSON. 


MAGRATH  J. 
W.    Wilkinson,    E>q. 


Hoi  the  Allorney  but  of  the  client;  rtiid  it  is  indis- 
Mr.  J.  W.  Wilkinson,  E>q.,  in  his  respohs^i'l'-nsable  (or  the  purpcsfs  of  private  jusiii-e.— 
ID  the  Writ  or  Garnishment,  issued  under>the  Whatever  facts,  therefore,  are  oominunicaied  by  a 
Act  of  the  Confederate  Congress  for  the  seques-  ^-''ent  todounsel  solely  on  account  of  that  relation, 
iration  of  the  property  of  alien  enemies,  h.is  sub-  si>ch  c•oun^el  are  not  at  liberty,  even  if  they  wish, 
mitied  by  way  of  defence,  to  any  lurther  answer'to  disclose:  and  the  law  holds  their  testimony  in- 
than  is  made  by  him,  the  privilege  and  the  obbga-pfompeient."  Lord  Brougham,  when  Lord  Chan- 
lion  upon  him,  as  an  Aiiorney,  not  to  disclose  cellor,  said:  "The  foundation  ol  the  rule  is  not  on 
such  communications  as  have  been  made  to  him /cc-ount  of  any  particular  importance  which  the 
as  an  Aitorney;  nor  to  give  information  as  to  such!  'aw  aitribuies  to  the  business  of  the  legal  profes- 
matiersas  he  has  become  co-nizant  of,  by  siichjl'^ion,  or  any  piinicular  dispo<uiDn  to  afford  ihem 
communications  to  him  in  his  professional  <sa|  P''oi.'?clion.  But  out  of  regard  to  the  iniereMs  of 
.jg^.j(y  ,    I  justice,  which  cannot  be  upholden,  and  to  the  ad- 

I  aril  not  aware  of  any  of  the  modes  of  proceed-i|"i""sl''at''3n  of  justice  which  cannot  go  on,  without 
ins  adopted  or  sanctioned  by  this  Act  of  ihe  Con-I  the  aid  of  men  skilled  in  jnn-prudence,  in  the 
federate  Congress,  which  are  at  variance  with  ihe|  ,P''««"^'e  o/  Courts,  and  in  those  m«tiers  affecting 
rules  of  evidence  which  govern  in  a  Court  of  Law  ''ights  and  obligations  whu-h  form  the  subject  of  all 
or  of  Equity,  in  the  prosecution  x)f, suits;  which,' :J'*J'li«''*'pro''e^;J''SS  (Greenough  vs.  Gaskell,  1 
according  to  their  subject  matter,  are  cognizablefinli'^'y;  *""  ^•'  ^"r  ' 

the  one  or  the   other  of  those  jurisdictions.  !l     This  protection  exiends  to  every  communicatioit 

The  discovery  which  the  Act  seeks  in  the  service!  which  the  client  makes  to  his  legal  adviser,  tor  the 
of  its  Writ  of  Garnishment,  is  of  that  property,' 
which,  by  the  Act  of  Sequestration,  has  become  the 
property  of  the  Confederate  States.  To  wlialever 
were  the  rights  of  the  alien  cnemy;ii  has  succeeded 
as  perfectly  and  absolutely  as  could  a  purchaser 
thereof  for  valuable  consideration.  And  in  the 
proceedings  which  are  adopted  lor  the  recovery  of 
the  possession  of  such  proper'.y;  the  person  or 
per.-ons  in  whose  custody  or  control  it  may  be; 
occupy  the  relation  either  of  party  or  witness.  In 
those  relations  the  Act  of  the  Confederate  Con- 
gress does  not  interfere;  either  by  its  express 
declaration  or  proper  implication;  in  changing  the 
vonditions  which  in  a  Court  of  Law  or  of  Equi 
ly;  individuals,  either  as  parties  or  witnesses, 
would  bear  to  the  case  or  controversy  which  may 
be  pending.  By  the  rules  which  have  been  adopted 
by  this  Court  for    the   government   of  sucli    cases 

under  this  Act,  it  has  been  specially  provided,  thai 
all  questions  of  evidence  which    maybe  raised    in 

any  case,  shall  be    decided,  as    far    as  practicable; 

according  to  the  law  and  the  practice  in  like  cases 

recognised  and  of  force  in  the  Courts  of  this  State. 
The  intention  of  the  Act,  and  the  rule  ol  Courts 

now    referred  to,  lead  at  once  to  the  enquiry,   how 

far  the  exception  made  in  the  privilege  claimed  in 

the  plea  is  consistent  wjih  the  law  and  practice,  asj 

understood    and    enforced    in  the    Courts  of  this 

iState? 

The  protection  .which  Courts  of  Justice  afford  to 

what  are  called  professional  communications,  is  of 

much  antiquity.     It   has  always  rested   upon  con* 

siderations  of  public  policy.     And  the  rule  is  clear 

and  well  settled,  that  the  Solicitor  or  Attorney  of  a 

party  cannot  be    compelled    to  disclose  pipers  de 

livered  or  communications  made  to  him:  or  letters 

or  entries  made  by  him  in  that  capacity.    ii  Green- 
leaf  on   Evidence,  273)     In  China  vs    Reinieker, 

4  Wheat.   R.  p.  294,  Judge  Story  says  in  reference 

to  this  question:  ''The  privilege  indeed    i»  not  thai 


purpose  of  professional  advice  or  nid,  upon  the 
subject  of'  his  rights  and  liabilities.  But  such  com- 
munications must  be  made  to  the  Coun>el,  Attor- 
ney or  Solicitor,  acting  for  'the  time  being  in  the 
character  of  legal  adviser.  (1  Greenleaf  Ev.,  274, 
275) 

The  rule  so  stated  is  fully  recognized  and  en- 
forced in  the  Courts  of  this  State. 

Resting  as  it  thus  does  upon  considerations  ol 
public  policy;  essential  as  it  is  regarded  to  the 
correct  administration  of  public  justice:  coming 
clown  from  the  early  periods  when  the  princi- 
ples of  jurisprudence  were  established,  which  are 
yet  preserved:  and  recognized  l)y  all  Courts  of 
Justice  in  America  and  Great  Britain  as  an  estab- 
lished.judicial  institution;  I  should  not  feel  at  lib- 
erty, to  deny  its  applicability  in  these  cases,  unless 
It  was  abolished  by  the  force  of  an  express  enact- 
ment. I  have  said  that  so  far  from  there  being  an 
express  enacimeni  to  ihis  effect,  there  is  not  even 
a.  reasonable  support  for  the  implication,  that  the 
abolition  o*"  this  privilege  M'as  intended  or  desired. 

The  plea  of  Mr.  Wilkinson  sets  forth  a  fact, 
which  seems  to  me  to  h".  of  consequence,  in  the 
interposi'ion  of  this  privilege  at  this  lime.  It  ex- 
pressly Slates  that  these  communications,  which 
are  held  to  be  entitled  lo  this  protection,  were 
made  to  him  before  the  war  whicli  is  now  waged 
by  the  United  Slates  against  these  Confederate 
Stales.  They  were,  therefore,  received  at  a  time 
when  it  was  lawful  to  make  such  communications. 
And  when  «made,  the  protection  which  Is  now 
asked,  fhen  arose.  When  once  established,  it 
became  fixed. 

I  consider,  therefore,  the  privilege  set  up  in  the 
plea,  a  good  defence  to  the  requirement  of  the 
Writ;  and  that  it  protects  the  defendant,  either  as 
a  paity  or  a  witness,  in  not  making  further  answer 
to  the  mailers,  which  have  been  communicated  to. 
him  in  his  prolessional  capacity. 


PRESENTMENT  OF  THE  GRAND  JURY. 


m  THE  CONFEDEEATE  COUET  FOE  SOUTH  CAROLINA. 
October  Term.  1861. 


•  The  Grand  Jury,  according  to  custom  and  con- 
forming to  the  inctructions  of  the  Conn,  present  to 
the  Court  as  worthy  of  amendment  by  the  proper 
authority  .*ome  provisions  of  ihjs  Act  for  con(i^ca- 
tinff  the  property  of  alien  enemies  in  this  Stale. 

The  mischievous  moral  effatt  of  hostility  exer- 
cised in  this  way  does  not  remain  for  us  to  debate 
The  enemy  has  set  the  example,  and  it  is  no  longeri 
a  quesiion  with  us  whether  we  should  follow  it; 
We  do  not  appropriate  the  property  of  Itiliens  fori 
revenge,  but  in  strict  self  defence.  Their  ("uiul« 
are  not  paid  into  our  treasury  to  aid  us  in  (loin.' 
them  injury,  but  to  compensate  our  people  who 
may  be  made  the  victims  of  their  rapacity.  The 
law  is  justifiable  and  necessary,  but  in  orsjanizitigr  a 
system  under  it  we  have  to  remember  that  our 
most  energetic  and  eiiiepri.-ing  men  should  be 
sheltered  and  protected,  not  wor>ted  and  oppressed. 
In  the  anxiety  of  our  legislative  body  to  make  the 
Ad  etiicient  the  merchant  here  has  not  been 
represented  as  carernllya8  would  have  been  doubt- 


position  is  that  of  representaiive  of  the  alien 
partner!'  This  new  and  oppressive  condition 
is,  as  life  experience  of  men  of  action  in  any 
walk  of  life  will  admit,  wiihout  further  proof 
or  argiftnent,  a  great  burthen  upon  our  own 
men.  To  give  security  for  large  sums,  upon  a  very 
ill  defined  obligation,  in  the  conl\ision  of  revoluiion, 
must  be  difficult  in  any  case — impossible  in  most 
cases.  We  submit  to  the  Court,  that  il  the  demand 
•or  security  must  be  made  in  carrying  the  Act  of 
Confiscaiion  into  effect,  il  concerns  not  individuals 
only,  but  our  whole  society,  that  such  time  should 
be  allowed  as  may  enab'e  the  Legislature  to  recon* 
sider  this  part  o(  the  system.  Without  such  con~ 
siderate  discretion,  the  con-equence  must  i>e  in 
mo»t  cases  bankruptcy  to  men  perfectly  solvent, 
and  a  formidable  sacrifice  not  only  of  present 
means,  but  of  credit  and  chnracter.  Credit  is  in 
ihis  country,  above  all  other  countries,  the  life  of 
the  merchant.  Commercial  truth  is  his  point  of 
honor.     It  is  auony  to /ail  in  his    engagements.     It 


less  the  will  of  the  Legi.--la!ure  if  the  experience  of  wdnld  be  belter  in  the  Government  to  abandon 
the  members  had  made  them  familiar  with  the  con-  aUosether  the  confiscaiion  of  the  debts  Of  alien 
diijons  01  trade.  In  the  show,  and  we  believe  with  enemies,  than  to  insist  upon  the  demand  of  secu- 
the  honest  purpose, of  affording  to  partners  resident  Irities  lor  the  partnership  effects,  or  for  debts  out- 
here  lime  and  means  for  closiusT  partnership  afr,iirs|!<tanding  here.  Inflict  bankruptcy  upon  the  resi« 
with  their  late  co  partners  resident  in  the  States  dent  partner,  or  the  confideniial  agent  or  debtor, 
we  have  abandoned,  the  law  provides  that  our  ami  no  motive  can  exist,  to  use  the  skill  and  dili- 
citizens  should  give  security  to  the  Government  in  gence  which  have  been  the  basis  of  trust,  in 
certain  cases.  This  unhappy  precaution  seemed  retrieving  funds,  placed  in  jeopardy, 
only  a  reasonablepreoauiionto  the  Government,  but,  All  the  inconveniences  which  have  been  sug- 
in  it*  operation  works  irremediable  wrong  and  inju-,g^.sied  in  ca-e  of  partnerships.  exi>t  in  a  greater 
ry  to  our  own  people.  It  becomes  us  to  romeinber^degrte  in  relation  to  debts  due  at  the  North  by 
the  intimate  relations  in  which  we  have  lived 'euizen^  of  the  South.  If  the  citizen  of  the  South 
with  the  people  of  the  North.  Until  December^  is  u,  giv^j  .security  for  such  debts,  the  requisition  is 
21,1860,  we  have  not  lived  near  each  other  as  |i,ipossible;  it  is  ilo  part  of  the  original  transaction; 
separate  nations,  but  as  one  people  ;  and  our  free  ijf  forced  to  pay  it  niu.si  be  ruinous.  It  may  be 
intercourse  and  absolute  free  trade  with  each  othei  ^proper  thai  the  benefit  of  these  debts,  where  they 
has  drawn  us  closer  to  each  other  than  has  everj Lan  be  realized,  should  be  for  the  use  of  the  Con- 
hoppened  with  partnerships,  between  different  na-ji(ederate  States;  and  iha'  the  citizen  should  be 
lionahties.  There  was  nothing  in  our  political!  |r,.qj,, red,  if  it  were  deemed  necessary,  to  give 
position  to  warn  us  of  so  radical  a  change— ai^,.i.,,riiy  not  to  pay  the  said  debts,  except  to  the 
warning  which  would  have  exi>led  had  we  heforeConfetkraie  Slates.  But,  under  any  circumstances, 
been  separate  naiions.  In  the  dissolution  of  com-  ,0  coerce  payment  at  this  time,  or  to  require 
mercial  pannerships,  there  must  occur  much  that  vecunty,  that  if  hereafter  required  the  debts  shall 
proves  painful  and  injurious,  but  the  mere  dissolu  by  pmd^  perhaps  at  a  short  day,  can  but  produce 
lion,  or  even  the  sudden  dissolution,  is  not  just  confusion  and  distress,  which,  in  most  cases,  could 
subject  of  complaint.  It  is  a  political  and  social  |,„i  ^nd  in  commercial  ruin.  The  indirect  effect  of 
necessity.  Our  duty  to  ourselves  and  the  con»lil  lyiie-deihand  for  security  for  debts  due  abroad  would 
uenls  of  our  Government  prescribe  to  us  great  care  |,e  to  give  preference  to  those  debts  over  debts  due 
in  protecting  the  partner  resident  here,  often  the  ;,i  home,  and  the  means  of  payment  of  the  debtor 
niostenterprisingandiru>iworthyamongus.  When  \vould  he  exhausted,  leaving  neither  fund  nor 
such  vital  changes  occur,  the  sense  of  mutnar.,j.curitV  for  the  navment  of  the  general  debts  at 
interest  and  old  trust  between  individuals,  give  h,„iie,  a  result  certainly  not  proposed  in  the  minds 
to  the    change  sui-h  a    form  as    affords    time  and  qC  the  L'ci^laiive  authorities 

power  to  avoid  loss  of  capital,  and  above  all.  Joss  ^y^  recommendl|hal  the  apartments  used  for  the 
o  credit.  But,  if  in  this  violent  P"hl'«^  disruption  ^^.^^,,,,,^^j^„^,,,  oflhis.  Court,  and  its  officers  be 
o(  joint  interests,  such  a  construction  can  be  -"ade;  ^^^^^^  dnvenienily  and  comfortably  furnished,  and 

of  the  provisions  ol  iheAci  of  the  Confederate  Gov    .u„.  or.1)^„.i„  „„„.,..;„..  u^ i^  k„  .1,..  n^..<:.A ... 

eminent,  as   will  make  it  operative  without  any 

(he  lenitives  which  would  be  interposed  'between   q^^-, 

individuals,  the  widest  mischief  would  be  produced   i 

It  seldom  occurs  in  co-partnerships  in    trade   ihat  UyM.  H.' ULLILAND.Fore-'MARTIN  HENEBERQ 

articles  of  agreement  exhibit   provisions    lor    new      man.]  ' — -  — 

securit^ship    upon    the    termination    of  the  trade.  A.  1-*.  C^  iDWt<"LL.^ 
Bui  here,  for  want  ofexperience  in  this  department  ,1^'''^^'^   '.  CnEbTER. 
of  life,  Congress    has   imposed   upon    the  resident  j\hieS   '  ci'MMINGS 


more  conveniently  anu  comic 

thai  aniearly  provision  be  mai 

°     Goverameni  for  a   fire  proof 
:en  v-' .  ~ 


le  by  the  Confederate 
Court  House  for  this 


partner  a  new  burthen  not  before  known  betweenij'f.  N.  J( 
tbe    partners,    and    this,    too,   when,     their    only"F.  GILl 


iNSOJS. 

;s. 


JAMES  I,.  UKANDT. 

B.  McCALIj. 
|B  JOH.\.-^0N. 
I  AU«tUsTUS  S.  .rOHNSON. 

PaRKKK  J.  HOLLAND. 

D.  B.  COMSTOCK, 


THE  SEQUESTRATION  ACT  OF  THE  CONFEDERATE  STATES. 


AN  ACT  FOR  THE  SEQUESTRATION  OF  THE  ESTATES,  PROPERTY.  AND  EF- 
FECTS OF  ALIEN  ENEMIES,  AND  FOR  THE  INDEMNITY  OF  CITIZENS  OF 
THE  CONFEDERATE  STATES,  AND  PERSONS  AIDING  THE  SAME  IN  THE 
EXISTING  WAR  WITH  THE  UNITED  STATES. 


Whereas,   ihe    Government    and    people   of  the 
Uniied  Stales  have   de()aried   from   ihe  usages  ol 
civil, zed  warfare  in  CAinfi-cating-and  deslroyiiig  the 
properly  of  ihe  people  of  ihe  Confederate  States,  of 
all  kinds,   whrther   used    for    miliiary'«  pur|)Ose.s  or 
not;  and  whereas,  our  only  protection  against  such 
wrongs  is  to  be   ound  in  such  measures  ol  relalia-  | 
lion  as  will  ultimaiely  indemnify  our  own  citizens  • 
for  their  lo-ses,  and  restrain  the  wanton  excesses  j 
of  our  enemies  :  Therefore,  || 

Skctio.n  1  Be  It  enaele.d  by  the  Congrexx  of  Ae\\ 
Confederate  Slates  oj  Anitricn,  Tliat  all  and  every  j 
the  lands,  tenements,  herediiamen's,  goods  a.4ilj| 
chattels,  ngtits  and  credits,  within  these  Confedife  i 
raie  States,  and  every  rii^ht  and  interest  (herein 
held,  owned,  po.^ses^ed  or  enjoyed  by  or  fur  any 
alit-n  enemy  since  the  iweniy  Hr.^day  of  May,  one 
thousand  eight  hundred  and  sixiy-one,  exc-ei  t  such' 
debts  due  lo  an  alien  enemy  as  may  have  been  paid 
iniO  the  Trea-ury  of  any  one  of  the  Confederatt- 
States  prior  to  the  passage  of  this  law,  be,  and  tjjie' 
same  are  hereby,  sequestraied  by  the  Confedera'e 
Slates  of  America,  and  shall  be  held  for  the  full 
indemnity  ol  any  true  and  loyal  ciiizen  or  resideni 
of  ihese  Confederate  Stales,  or  other  per-on  aidinsi! 
said  Conlederate  Slates  in  the  prosecution  of  tbe! 
present  war  between  said  Contederate  Stales  andi 
the  Uniied  Stales  of  Amfrii-a,  and  for  which  he[ 
may  suffer  any  loss  or  injury  under  the  Act  of  thel 
Uniied  States  to  which  this  Act  is  retaliatory,  or] 
under  any  other  Act  of  the  United  Stales,  or  o(  anyj 
Slate  thereof,  authorizing  the  seizure,  condenina- 
ti(-n,  or  coiiti-cation  of  ihe  property  of  citizens  or 
residents  of  the  Confederate  States,-  or  other  per-! 
son  aidicitf  said  Conlederaie  States,  and  the' 
same  shall  be  seized  and  di>posed  "f  as  provided^ 
for  in  this  Act:  Providfd,  however^  When  t'le  es- 
tate, prc'perty  or  rights  to  be  effected  by  this  Act 
were  or  are  wiihin  some  Slate  of  this  Confederacy 
which  has  become  such  since  said  iwenty-firsl  day! 
of  May,  then  this  Act  shall  operate  upon,  and  as  toj 
sufh  estaie,  |iropertv  or  rights,  and  all  persons 
claiming  the  same  (rom  and  after  the  day  such! 
Slate  so  became  a  member  of  this  Confederwey,  andi 
not  before:  Pruvidtd  furllier^  That  the  pre  isionsj 
of  this  Act  shall  not  extend  to  the  stocks  or  otherj 
public  seeunties  of  the  Confederate  Government, 
or  of  any  of  the  States  of  this  Confederacy  held  or! 
owned  liy  any  alien  enemy,  or  to  any  debt,  obliga 
tioii  or  sum  due  from  the  ConleJeraie  Government, 
or  any  of  the  States,  to  such  alien  enemy:  And 
provided,  also,  That  the  provisions  of  this  Act  shall 
not  embrace  the  |)roperty  of  citizens  or  residents 
of  eiiher  of  the  States  of  Delaware,  Maryland, 
Kemucky  or  Missouri,  or  of  the  District  ol  Colum- 
bia, or  the  Territories  of  New  Mexico,  Arizona  or 
the  Indian  Territory  South  of  Kansas,  except  such 
01  said  citizens  or  res  dents  as  shnll  commit  actual 
hosiiliiies  ayainst  the  Confederate  States,  or  aid 
and  abet  the  Uniied  States  in  ihe  existing  war 
against  the  Confederatp  States. 


Sec  2.  And  be  it  farther  enacted,  That  it  is,  and 
~liall  be,  the  duty  of  each  and  every  ciiizen  of  these 
Confederate  State.<  »p<edily  to  give  information  to 
ilie  oificers  charjied  with  the  execution  of  this  law 
of  any  and  every  lands,  leiiements  and  heredila- 
menis.guods  and  chattels,  rights  andcrediis,  within 
itiiUiCon'ederacy,  and  every  risiu  and  interest 
therein  held,  owned,  posses^ed  or  enjoyid  by  or 
for  any  alien  enemy  as  atoresaid. 

Sec  3.  And  be  tt  farther  enacted,  That  it  shall 
be  the  duty  of  everA  attorney,  agent,  lormer 
partner,  trustee  or  other  person  holding  or  controll- 
ing any  such  lands,  lenements  or  hereditaments, 
ii:ood>  or  chattels,  rights  or  credits,  or  any  imerest 
therein,  of  or  for  such  alien  enemy,  sfieedily  to 
inform  the  Receiver,  hereafter  provitJed  to  be  ap- 
Ipoiiiied,  of  the  same,  and  to  render  an  account 
(thereof,  and,  so  far  as  is  praclicahle,  to  place  the 
Same  in  the  hands  of  such  Receiver;  whereujion, 
-uch  person  shall  be  lully  acquitted  o/"all  respon- 
>ibility  for  property  and  eflpcts  so  reponed  and 
turned  over.  And  any  such^erson  willfijlly  tailing 
to  give  such  information  and'  render  such  account, 
shall  be  guilty  ot  a  high  misdemeanor,  and,  upon 
indictment  and  conviction,  shall  be  hned  in  a  suin> 
^not  exceeding  five  thousand  dollars  and  lmp^i^onea 
inot  Jonger  than  six  month-;  said  fine  and  imprison- 
ment to  be  determined  by  ine  Court  trying  the 
lease,  and  shall  further  be  liable  to  be  sued  by  said 
!Coiifederate  Sia'es,  and  sui>jected  to  pay  double 
jthe  value  of  said  estate,  property  or  eflects  of  the 
said  alien  enemy,  held  by  him  or  subject  to  his 
Jcontrol. 

j  Skc.  4  It  shall  be  the  duty  of  the  several  Judge* 
of  this  CouCederacy  to  give  this  Act  s[iecially  in 
ichargetoihe  Grand  Juries  of  these  Ctmiedcrate 
States,  and  it  shall  be  their  duty  at  each  sitting 
Well  and  truly  to  inquire  and  re|ior£all  lands,  ten* 
lements  and  hereditaments,  goods  and  chattels, 
(Tights  and  credits,  and  every  interest  therein,  with- 
jin  the  jurisdiction  of  said  Grand  Jury,  held  by  or 
ifor  any  alien  enemy,  and  it  shall  be  the  duty  of 
[the  several  Receivers,  api>oined  under  tliis  Act, 
[to  take  a  copy  of  every  such  report, and  to  proceed 
|in  obtaining  the  possession  and  control  of  all  such 
iproper^y  and  etfects  reported,  and  to  institute  pro- 
|ceeding-i  (or  the  sequestration  thereof  in  the  man- 
|ner  hereinafter  provided. 

I  Sec  5.  Be  itjuriher  enacted,  That  each  Judge  of 
!thi-^  (Confederacy  shall,  as  early  as  practicable,  ap- 
l)0int  a  Receiver  (or  each  section  of  the  State  for 
which  he  holds  a  Court,  and  shall  require  him  be- 
ifore  entering  upon  the  duties  of  hi"  office,  to  give 
ja  bond  in  such  penalty  as  may  be  prescribed  Dy 
jthe  Jiulge,  with  good  an'd  sufficient  seeurity,  to  be 
!ap|)rove'l  by  the  Judge,  conditioned  ihat  he  will 
jdiligeiiily  and  faithlully  discharge  the  diitics  impos- 
led  upon  him  by  law.  And  said  officer  shall  hold  his 
ioflice  at  the  plca.sure  cf  the  Judge  ol  the  district  or 
!beclion  lor  which  he  is  appointed,  and  shall  be  re» 
!moved  for  incompetency,  or  inefficiency,  or  infidel- 


VHE  SEaUllisTRATlON  ACT. 


(16 


t^  ia  lbe<iidcbarge  ol  his  trubt.  And  should  ihe||may  be  leil  sball  be  bound  to  account  for,  aud  pay 
duties  of  any  such  Receiver,  at  any  time,  appeari:over  aanually  lo  the  Receiver  the  net  income  or 
to  the  Judge  to  be  greater  than  can  be  efficientlyjiprofitM  of  said  property,  and  on  failure  ot  such 
performed  by  him,  then  it  shall  be  the  duty  of  ihejidebior  or  other  per^-on  to  pay  over  such  interest. 
Judge  to  divide  the  district  or  section  into  one  orjinet  income  or  profits,  as  the  same  falls  due,  the 
more  other  Receivers'  Dit-tricts,  according  to  thel:Receiver  may  demand  and  recovertke  debt  or  pro- 
necessities  of  the  case,  and  to  appoint  a  Receiver!  party.  And,  wherever,  after  ten  days' notice  to 
for  each  of  said  newly  created  dibirici.s.  And  everyjany  debtor  or  person  in  whose  hands  properly  or 
such  Receiver  shall  also,  before  entering  upon  the  debts  may  be  left,  of  an  application    for  further  se- 


duties  of  his  office,  make  oath  in  writing  before  the 
Judflfe  of  the  district  or  section  for  which   he  is  ap 


curity,  itrehall  be  made  to  appear  to  the  satislaction 


of 


rity,  itre 
the  CSt 


grt  that  the  securities  of  such  debtor  or 


pointed,  diligently,  well   and    truly    lo  exeeute  the)  pers^on  are  not  ample,  the  Court  may.  on  the  failure 
duties  of  his  office.  i  of  the  pSrty  to   give    sufficient  additional  secuiiiy. 

Sec  6.  Be  it  further  enacted:,  That  it  shall  be  the  render  judgment  againt  all  the  parties  on  the  bond 
duty  of  the  several  Receivers  aforesaid  to  take  the'  for  the  recovery  of  the  debt  or  property  :  Providsd 
jio.^session,  control  and  management  of  all  \!inti%,\  further.  That  said  Court  uuiy,  .whenever  in  the 
tenements  and  hereditaments,  goods  and  chalteU,  opinion  of  the  Judge  thereof  the  pubiic  exigencies 
rights  and  credits,  of  each  and  every  alien  enemy  mny  require  it,  order  the  money  due  as  aloresaid 
within  the  seciion  for  which  he  acts.  And  to  this  to  be  demanded  by  the  Receiver,  and  if  upon  de- 
end  he  is  empowered  and  required,  whenever  maud  of  the  Receiver,  made  in  conformity  to  n 
necessary  for  accomplishing  the  pur|)08e&  ot  thisiidecretal  order  ot  the  Court  requiring  said  Receiver 
Act,  to  sue  tor  and  recover  the  same  in  the  name' to  collect  any  debts  for  the  payment  of  which  se- 
ofsaid  Confederate  States,  allowing  in  the  recovery  curity  may  have  been  given  under  the  provisions 
of  credits,  such  delays  asmay  have  been  or  may  betjol  this  Act,  the  debtor  or  his  security  shall  fail  to 
prescribed  in  any  State  as  to  the  collection  of  deltsi  pny  the  same,  then  upon  ten  days'  notice  the  said 
therein  during  the  war.  And  the  form  and  mode]  deiitor  and  his  security,  given  by  said  Receiver,  of 
of  action,  whether  the  matter  be  of  jurisdiction  ini  a  motion  lo  be  made  in  said  Couri  tor  judgment 
law  or  equity,  shall  be  by  petition  to  the  Court  set  !  lor  the  amount  so  secured,  said  Court,  at  the  next 
ting  forth,  as  best  as  he  can,  the  estate,  property,!  term  thereof,  may  proceed  to  render  judgment 
right  or  thing  sought  to  be  recovered,  with  the' against  «Bid  principal  and  security,  or  against  the 
name,  of  the  person  holding,  exercising  ^•llpervl- 'party  served  with  such  nDi'ce^  for  the  sum  so  se- 
sion  over,  in  possession  ot  or  controlling  the  same,'  cured  with  interest  thereon,  in  tbe  name  of  said 
as  the  case  may  be,  and  prayiiifr  4  seque»tration||Receiver,  and  to  i»su>- execution  therefor, 
thereof.  Notice  shall  thereupon  be  forthx^ith'  Sec.  7.  Any  person  in  the  possession  and  control 
issued  by  the  Clerk  of  the  Court,  or  by  the  Receiv  of  the  subject  matter  of  any  r<uch  suit,  or  claiming 
er,  to  such  person,  with  a  copy  of  the  petition,  and  any  interest  therein,  may,  by  order  of  the  Court, 
the  same  shall  be  served  by  the  Marshal  or  his  de-!  be  adinit'ed  as  a  defendant  and  be  allowed  to  de- 
puty and  returned  to  the  Courts  as  other  mesne'  fend  to  the  extent  of  the  interest  propounded  by 
process  in  law  cases;  Whereupon  the  cause  shallj  him;  but  no  person  shall  be  heard  in  defence,  until 
be  docketed  and  stand  ibr  trial  in  the  Court  accord-j  he  shall  file  a  plea,  verified  by  affidavit  and  signed 
ing  to  the  usual  course  of  its  business,  and  thejjby  him^settiiia;  forth  that  no  alien  enemy  has  any 
Court  or  Judge  shall,   at  any  lime,  make  all  orders  jiiiiereal  in  the  right  which  he  asserts,  or  for  which 


of  seizure  that  may  seem  necessary  to  secure  the 
subject  matter  of  the  suit  from  danger  of  loss,  in- 
jury, destruction  or  waste,  and  mny,  pending  the 
cause,  make  orders  of  sale  in  cusea  that  may  seem 


he  litigates,  either  directly  or  indirectly,  by  trust, 
open  or  secret,  and  that  he  litigates  solely  lor  hira- 
frlf  or  for  some  citizen  of  the  Confederate  States 
whom  he  legally  represents;  and  when  the  defence 


lo  such  Judge,  or  Court,  necesyary  to  preserve  nny,  is  cinducted  for  or  on  account  of  another,  in  whole 
property  sued  for  from  perishing  or  watte:  Povt(ied.\  or  part,  the  plea  shall  set  lorth  the  name  and  resi^ 
That  in  any  ca.se  wheh  the  ConPederate  Judges,  dence  ol  Puch  other  person,  and  the  relation  that 
shall  find  it  to  be  consistent  with  the  safe-keeping  the  defendant  bears  to  him  in  the  litigation.  If  tbe 
of  the  property  so  sequestered  to  leave  the  samel  cause  ihvolves  matter  which  should  be  tried  by  a 
in  the  hands  and  under  the  control  o(  any  debtor  .jury,  according  to  the  course  of  common  law,  the 
or  person  in  whose  hands  the  real  e.stateand  slavesi  defendant  shall  be  entitled  to  a  jury  trial.  If  u 
were  seized,  who  maybe  in  possession  of  the  saidi  involves  matter  of  equity  juri.sdiclion,  the  Court 
property  or  credits,  he  sli nil  order  the  same  lo  re-l  shall  proceed  according  to  its  usual  mode  ot  pro- 
main  in  the  bands  and  under  ifhe  control  of  saidlcedurtiin  such  cases,  and  the  several  Courts  of 
debtor  or  |)ers'iii  in  whose  hands  the  real  estate  and  this  Confederacy  may,  from  time  to  time,  establish 
slaves  were  seized,  requiring  in  every  such  case  rules  ol  procedure  under  this  Act,  not  inconsistent 
such  security  tor  the  safe  keeping  of  the  property!  with  tie  Act  or  other  laws:  of  the^e  Confederate 
and  credit  as  he  may  deem   siifficient  for  the  pur-i  States] 

pose  aforesaid,  and  to  abide  by  such  further  ordersl  Sec.I8.  Be  it  further  enacted,  That  the  Clerk  of 
as  the  Court  may  make  in  the  premises.  But  this;  the  Colin  shall,  at  the  request  of  the  Receiver,  from 
proviso  shall  not  apply  to  bank  or  other  corpora-j  time  tatime,  issue  writs  of  garnishment,  directed 
*  tioQ  Btbcks,  or  dividends  due  or  which  may  be  due  to  onelor  more  persons,  commanding  them  to  ap- 
thereon,  or  to  rents  or  real  estate  in  cities.  And  pear  atlthe  then  sittmgj  or  at  any  future  term  of 
no  debtor  or  other  person  shall  be  entitled  to  the  the  Colrt.  and  to  answer  under  oath  what  proper- 
benefit  of  this  proviso  unless  he  has  first  paid  into  ty  or  elects  of  any  alien  enemy  he  had  at  tbe  ser- 
the  hands  of  the  Receiver  all  interests  or  net  pro-  vice  ot  the  process,  or  since  has  had  under  bis 
fits  which  may  have  accrued  since  the  21st  May,  possesion  or  control,  belonging  to  or  held  for  an 
eighteen  hundred  and  sixty^one;  and,  in  all  cases  alien  f^my,  or  in  what  sum,  if  any,  he  is  or  was 
coming  under  this  proviso,  such  debtor  shall  be  at  the  I 
bound  to  pay,  over  annually  to  the  Receiver  all  has  bee 
interest  which  may  accrue  as  the  same  falls  due;  Court  i 
and  the  person  in  whose  hands  any  other  property  effectsJ 
9 


le  of  service   of  the  garnishment,  or  since 

indebted    to   any   alien  enemy,  and    the 

fall  have  power  to  condemn  tbe  property  or 

jr  debts,  according  to   the    answer,  and  to 


66 


THE  SEaUESTRATION  ACT. 


make  f.nch  rules  and  order*  for  the  bringing  in  of 
third  persons  claimins;  or  disclosed  by  the  answer 
to  have  an  interest  in  the  litigation  as  lo  it  shall 
seem  proper;  but  in  no  <^ase  shall  any  one  be  heard 
in  re.>ipecl  thereto  until  he  shall,  by  sworn  plea,  sei 
forth  substantially  the  matters  before  required  oT 
parties  pleading.  And  the  decree  or  judsjment  of 
the  Court,  rendered  in  conformity  to  this  Act,  shall' 
forever  protect  the  garnishee  in  respect  to  the 
matter  involved.  And  in  all  cases  of  garnishment 
under  this  Act,  the  Receiver  may  test  the  truth  ol 
the  garnishee's  answer  by  filing  a  statement  under 
oath,  that  he  believes  the  answer  to  be  untrue, 
specifying  the  particulars  in  which  he  believes  ihe 
garnishee  has,  by  otnission  or  commission,  not 
answered  truly;  whereupon  the  Court  shall  cause 
an  issue  to  be  made  between  the  Receiver  and  the 
garnishee,  and  judgment  rendered  upon  the  trial  of 
other  issues.  And  in  all  cases  of  litigation  under 
this  Act,  the  Receiver  may  propound  interrogato- 
ries to  the  adverse  party  touching  any  matter  in-| 
volved  in  the  litigation,  a  copy  ol  which  shall  be 
served  on- the  opfosite  party  or  his  attorney,  aii'l 
which  shall  be  answered  under  oaih  within  thirty 
days  of  such  service,  and  upon  failure  so  to  an- 
swer, the  Court  shall  make  such  disposition  of  the 
cause  as  shall  to  it  seem  most  promotive  of  justice, 
or  should  it  deem  answers  to  the  iDterrogalories 
necessary  in  or<ler  to  secure  adiscovery,ihe  Court 
shall  imprison  the  party  in  default  until  full  an  : 
svi'ers  shall  be  made^  j 

Sec.  9.  It  shall  be  the  duly  ol  the  District  Attor- 
ney of  the  Confederate  States,  diligently  to  prosf  \ 
cute  all  causes  instituted  under  this  Act,  and  thttj 
he  shall  receive  as  a  compensation  therefor  two  per! 
cent,  on  and  from  the  fruits  of  all  litigation  insiitu-i 
ted  under  this  Act:  Provided,  That  no  matter  shall 
be  called  litigated  except  a  defendant  be  admitted 
by  the  Court  and  a  proper  plea  be  filed.  j 

Sec.  10.  And  be  it  further  enacted,  That  each! 
Receiver  appointed  under  this  Act  shall,  at  leaVli 
every  six  months,  and  as  much  oftener  as  he  may 
be  required  by  the  Court,  render  a  true  and  perfect 
account  of  all  matters  in  his  hands  or  under  his 
control  under  the  law,  and  shall  make  and  stale 
just  and  perfect  accounts  and  settlements,  under 
oath,  of  his  collections  of  monies  and  disbursementgl 
under  this  law,  stating  accounts  and  making  setile-j 
ments  ol  all  matters  sepurately,  in  the  same  way! 
as  it  he  were  administrator  of  several  estates  of 
<lecea8ed  persons  by  separate  appointments.  And! 
the  settlements  and  decrees  shall  be  for  each  case 
or  estate  separately,  so  ■  that  the  transaction  iu 
lei^pect  to  each  ai.en  enemy's  property  may  be 
kept  recorded  and  preserved  separately.  No  set- 
tlement as  above  provided  shall,  however, be  made 
until  judgmentor  decree  of  sequestration  shall  ha  vel 
passed,  but  the  Court  may  at  any  time  pending 
litigation,  require  an  acconot  of  matters  in  litif^ation 
and  in  the  possession  of  the  Receiver,  hiiJ  may 
make  such  orders  touching  the  same  as  shall  pro- 
tect the  interest  of  the  parties  concerned. 

Sec.  U.  When  the  accounts  of  any  Receiver 
shall  be  filed  respecting'  any  matter  whii-h  has 
passed  sequestration,  the  Court  shall  appoat  a 
day  for  settlement,  and  notice  thereof  shall  be 
published  consecutively  for  four  weeks  m  some 
newspaper  near  the  plaoeof  holding  the  Court,  and 
the  Clerk  of  the  Court  shall  send  a  copy  of  such 
newspaper  to  the  District  Atiorney  of  the  Confede- 
rate Slates,  tor  the  Court,  where  the  raatter  is  to 
be  heard,  and  it  shall  be  the  duty  of  said  District 
Attorney  to  attend  the  settlement  and  represent 
lb»  Government,  and  see   that  full,  true  a»d  just' 


settlement  is  made.  The  several  settlements  pre- 
ceeding  the  finai  one  shall  be  interlocutory  only, 
and  niiiy  be  impeached  at  the  final  settlements, 
which  latter  shall  be  conclusive,  unless  reversed 
or  impeached  within  two  years,  tor  t'raud. 

Seo.  12.  Be  tt  further  enacted.  That  fhe  Court 
having  jurisdiction  of  the  matter  shall,  whenever 
>ulficient  cau«e  is  shown  therefor,  direct  the  sale 
of  any  personal  property,  other  than  slaves,  se- 
questered under  this  Act,  on  such  terms  as  to  it 
.-hall  seem  best,  and  such  sale  shall  pa-s  the  title 
of  the  person  as  whose  property  the  same  has  been 
sequestered. 

Sec.  13.  All  settlements  of  accounts  of  Receivers 
lor  sequestered  property  shall  be  recorded,  and  a 
copy  tiiereof  shall  be  forwarded  by  the  Clerk  oi 
the  Court  to  the.  Treasurer  of  the  Confederate 
Stales  within  ten  days  after  the  decree,  interlocu- 
tory or  final,  has  been  passed  ;  and  all  balances 
found  against  the  Receiver  shall,  by  him,  be  paid 
over  into  the  Court,  subject  to  the  order  of  the 
Treasurer  of  the  Confederate  States,  and  upon  the 
failure  of  the  Receiver  for  five  days  to  pay  over 
ihe  same,  execution  shall  issue  therefor,  and  he 
shall  b^  liable  to  attdchment  by  the  Court  and  to 
isuit  upon  his  bond.  And  any  one  embezzling  any 
money  under  this  Act  shall  be  liable  to  indietmentv 
and  on  conviction  shall  be  confined  at  hard  labor 
for  not  less  than  six  months  nor  more  than  five 
years,  in  the  discretion  of  the  Court,  and  fined  in 
double  the  amount  embezzled. 

Sec.  14.  Be  it  further  enacted.  That  the  President 
of  the  Confederate  Slates  shall,  by  and  with  the 
advice  and  consent  of  Congress,  or  of  the  Senate, 
if  the  appointment  be  made  under  the  Permanent 
Government,  appoint  three  discreet  CommissioD-« 
ers,  learned  in  law,. who  shall  hold  at  the  seat  of 
Government  two  terms  each  year,  upon  notice 
given,  who  shall  sit  so  long  as  the  busiuess  before 
them  shall  require,  whose  duty  it  shall  be,  under 
such  rules  as  they  may  adopt,  to  hear  and  adjudge 
such  claims  as  may  be  brought  1)efbre  them  by  any 
one  aiding  this  Confederacy  in  the  present  war 
against  the  Uiiiied  States,  who  shall  allege  that  be 
has  been  put  to  loss  under  the  Act  of  the  United 
States,  in  retaliation  of  which  this  Act  is  passed, 
or  under  any  other  Act  of  the  United  States,  or  of 
any  State  thereof,  authoriziijg  the  seizure,  condem- 
nation or  confiscation  of  the  properly  of  any  citizen 
or  resident  of  the  Confedera  e  States,  or  other  per- 
sons aiding  said  Confederate  States  in  the  present 
war  against  the  United  St.iles,  and  the  finding  of 
such  Commissioners  in  favor  of  ahy  such  claim 
shall  be  priina  facie  evidence  of  the  correctness  of 
the  demand,  and  whenever  Congress  t-hall  pass  the 
claim,  the  same  shall  be  paid  from  any  money  in 
the  Treasury,  derived  from  sequestration  under 
this  Act :  Provided,  That  said  Board  of  Commis- 
sioners shall  not  continue  beyond  the  organization 
of  the  Court  of  Claims,  provided  for  by  the  Con- 
stitution :  to  which  Court  of  Claims  the  duties 
herein  provided  to  be  discharged  by  Commissiorl'era 
shall  belong  upon  the  organization  of  said  Court. 
The  salaries  of  said  Commissioners  shall  be  at  the 
rate  of  two  thousand  five  hundred  dollars  per  an- 
num, and  shall  be  paid  from  tlie  Treasury  ef  the 
Confederacy.  And  it  shall  be  the  duty  of  ihe  At- 
torney General  or  his  As>;istant,  to  represent  the 
interests  of  this  Government  in  all  cases  arising 
under  this  Act  before  said  Board  of  Commissioners. 

Sec.  1.'')  Be  it  further  enacted.  That  allexpensea 
incurred  in  proceedings  under  this  Act  shall  be 
paid  from  the  Sequestered  Fund,  and  the  Judges, 
in  settling  aecouuis  with  Receivsrs,  shall  tnake  to 


-.V 


THE  CONFISCATION  ACT  OF  THE  UNITED  STATES. 


67 


them  proper  altowsnces  of  compensation,  taking^ 
two  and  a  half  p«»r  c»int.  on  receipts,  and  the  same: 
amount  on  expenditures,  as  reasonable  compen^a-' 
tion,  in  all  cases.  The  fees  of  the  olficers  ol  Courij 
shall  be  such  as  are  allowed  by  law  for  similar  ser- 
vices in  other  ca?e<,  to  be  paid,  however,  only  from 
the  Sequestered  Fund:  Provided,  That  all  sum- 
realized  by  any  Receiver  in  one  year  for  hisservi 
ce.<«,  exceeding  five  thousand  dollars,  shall  be  paid; 
into  the  Confederate  Treasury  lor  ihe  use  of  thel 
Confederacy.  \  *  j 

Sic.  16.  JBe  it  further  enacted.  That  the  Attorney- 
General  shall  prescribe  buch  uniform  rules  of  pro-l 
ceeding  under  thi>  law.  noi  hetein  otherwise  pro- 
vided for,  as  shall  meet  the  necessiiies  of  the  case  j 

Sec.  17.  Be  it  further  enacted.  That  appeals  mavj 
lie  from  any  iinal  decision  of  the  Court  under  this' 
law  in  ihe  sanie  manner  and  within  the  same  time 
as  is  now,  or  hereafter  may  be  by  law,  pre.-cribed! 
lor  appeals  in  other  civil  cases.  ' 

Sec  18  Be  xt  further  enaeted,  That  the  word! 
"person"  in  this  law  includes  all  private  corpora* 
tionsj  and  in  all -cases,  when  corporations  become] 
parties,  and  this  1  iw  requires  an  oaih  to  be  made, 
it  shall  be  made  by  some  officer  of  sXich  corpora' 
tion.  [ 

Sec  19.  Be  it  farther  enaeted.  That  the  Courisj 
are  vested  with  jurisdiction,  and  required  by  ihi- 
Act  to  settle  all  partner?hips  heretofore  existing' 
between  a  citizen  and  one  who  is  nn  alien  enemy; 
to  separate  the  interest  of  an  alien  enemy,  and  tol 
sequestrate  it.  And  shall,  als^o,  sever  all  joint' 
rights  when  an  alien  enemy  is  con<;erned,  and  se-l 
queslrate  the  interest  of  such  alien  eneinv. 

Sec.  20.  Be  it  further  enacted.  That  in  all  ca'^es] 
of  administration  of  anyjnaiter  or  thing,  under  this; 
Act,  the  Court  having jijrisdiction  may  make  such 
orders  touching  the  preservation  of  the  property; 
or  effects  under  the  direction  or  control  of  the 
Receiver,  not  inconsisteiii  with  the  foregoing  pro- 


visions, as  to  it  shall  seem  proper.  And  the  Re- 
ceiver may,  at  any  time,  ask  and  have  the  instruc- 
tions of  the  Court,  or  Judge,  respecting  his  conduct 
jin  the  disposition  or  management  of  any  property 
jor  effects  under  bis  control. 

Sec.  21.  Be  it  further  enacted.  That  the  Treasury 
tNoies  o(  this  Confederacy  shall  be  receivable  in 
jpayment  of  all  purchases  of  property  or  efiects 
sold  under  this  Act. 

i  Sec.  22,  Be  tt  further  enacted,  That  nothing  in 
ithi>  Act  shall  be  construed  to  destroy  or  impair  the 
!lien  or  other  rights  of  any  creditor,  a  citizen  or  re- 
Isident  of  either  of  the  Confederate  States,  orof  any 
|Other  per^^on,  a  citizen  or  resident  of  any  Country, 
jState  or  Territory,  with  which  this  Confederacy  is 
Jin  friendship,  and  which  person  is  not  in  actual  hos- 
tility to  this  Confederacy.  And  any  lien  or  debt 
claimed  against  any  alien  enemy,  within  the  mean- 
ing of  this  Act,  shall  be  propounded  and  filed  in 
the  Court,  in  which  the  proceedincs  of  sequestra* 
ilion  are  had,  within  twelve  months  from  the  insti-^  .- 
luiion  of  such  proceedings  for  sequestration;  and"/) 
the  Court  shall  cause  all  proper  parties  to  be  made 
and  notices  to  be  given,  and  shall  hear  and  deter- 
jmine  the  respective  rights  of  all  parties  concerned; 
\Provided,hoioevtr,\\\2ii  no  sales  or  payments  over 
lof  money  shall  be  delayed  for,  or  by  reason  of  such 
jrii^hts  or  proceeding-;  but  any  money  realized  by 
the  Receiver,  whether  paid  into  the  Court  or 
'Treasury,  or  still  in  the  Receiver's  hands,  shall 
Island  in  lieu  of  that  which  produced  said  money, 
and  be  held  to  answer  the  demands  of  the  creditors 
aforesaid,  in  the  same  manner  as  that  which 
produced  such  money  was.  And  all  claims  not 
'propounded  and  filed  as  aforesaid.,  within  twelve 
months  as  aforesaid,  shall  cease  to  exist  against 
the  estate,  properly,  or  effects  sequestered,  or  the 
'proceeds  thereof. 

'     Approved  August  30   1S61. 

f 


CONFISCATION  ACT  OF  THE  UNITED  STATES. 

AN  ACT   TO  CONFISCATE   PROPERTY   l^SED  FOR   INSURRECTION- 

■      ART   PURPOvSES. 


Be  It  evaded  bu  the  Senate  and  House  of  Repre-. 
sentatives  of  the  United  States  of  America-  in  Co/i-\ 
gress  asaenib/fd,  That  if,  during  the  present  or  any 
future  insurrection  against  the  Govt-rnment  of  the 
United  States,  afier  the  ■Pre^iden^  ijf  the  United 
States  shall  have  declared,  by  proclamation,  that 
the  laws  of  the  United  States  artf'opposed,  and  the! 
execution  thereof  obstructed  by  combinations  tot) 
powerful  to  be  suppressed  by  the  ordinary  course 
of  judicial  proceedings,  or  by  the  povvervesied  in  the 
marshals  Ly  hiw,  any  pferson  oijfjpersons,  his,  her  or 
their  agent,  attorney  or  employee,  shall  purchase 
or  acquire,  stli  or  give-any  property,  ol  whatsoever 
kind  and  de-cripiion,  with  intent  to  use  or  employ 
•the  same,  or  suffer  the  same  to  be  used  or  employ 
ed  in  aiding,  abetting  or  promoting  such  insurrection 
or  ^e^i8t8nce  to  the  laws,  or  any  person  or  peruonsi 
engaged  therein,  or  if  any  perton  or  persons,  being: 
the  owner  or  owners  of  any  such  properly,  shall 
knowingly  use  or  employ,  or  consent  to  the  use  ori 
employment  of  the  same  as  aforesaid,  all  such^pro- 
perty  is  hereby  declared  to  be  lawful  subject  of 
price  and  capture  wherever  found;  and  it  shall  be 
the  duty  of  the'President  of  the  United  Slates  to 
caasethe  same  to  be  seized,  confiscated  and  con- 
demned.        '*"  »' 


SkC;^^  ^.  That  such  prizes  and  capture  shall  be 
condemntd  in  the  District  or  Circuit  Court  ol  the 
lUnited  States  having  jurisdiction  of  the  amount, 
jor  in  Admiralty  in  any  district  in  which  the  same 
imay  be  seized,  or  into  which  they  may  be  taken 
and  proceedinzs  first  instituted. 

Skc  31  That  the  Attorney-General  or  any  District 
Attorne^of  the  United  States  in  which  said  proper- 
ty may  at  the  time  be,  may  institute  the  proceed- 
ings of  (Condemnation,  and  in  such  case  they  shall 
be  wholly  for  the  hent'fit  of  the  United  States,  or 
lany  pelson  may  file  an  information  with  »uch 
attorne] ,  in  which  case  the  proceedings  shall  be 
lor  the  I  se  of  such  inlormer  and  the  United  Slates 
in  equal  parts. 

Sec.  '  .  That  whenever  any  person  claiming  to 
:be  entitl  (d  to  the  service  or  labor  of  any  other  per- 
son undi  r  the  laws  of  any  Stale,  shall  employ  such 
.person  i  i  aiding  or  promoting  any  insurrecuon,  or 
resisting  the  laws  of  the  United  States,  or  shall 
peimit  h  m  to  be  so  employed,  he  sii.ill  forfeit  all 
right  to  !  uch  service  or  labor,  and  lue  ;,erson  whose 
llabor  an  service  is  thun  claiine  i  shbll  bethence- 
iforlh  dii  -harged  therefrom,  any  l-v«-  t^i  the  contra- 
!ry  uotw  thstanding. 


THE  UNITED  STATES'  COxXFISCATION  ACT. 


EXPLANATORY 


LETTER  FROM  THE  SECRETARY  OF  THE 
TREASURY. 


Department  of  State,     ) 
Washington.  September Ul.  1S61.  j 

Sir: — In  order  lo  prevvenc  the  seizure  o(  property 
belonging  to  citiznns  of  insurrectionary  States,  not 
wnrranted  by  the  Acts  of  Congress  relnting  toihai 
subject,  it  IS  ilioughl  advisable  to  direct  the  special 
attention  ol  Marshals  and  District  Attorneys  of  tbe 
United  Slates  to  the  provisions  of  ihe;>e  Acts: 

The  tifih  section  of  the  Act  of  July  13  provides 
that  ail  goods  and  chattels,  wares  and  merchandise, 
coming  from  or  proi^eeding  to  a  place  or  Stale  de 
ciared  lobe  in  insurrection, together  with  the  vessel 
or  vehicle  carrying  the  same,  or  conveying  pe^son^ 
to  or  from  such  Slate  or  place,  shall  be  forfeited'if 
the  United  Slates.  I 

This  section  obviously  applies  to  all  properly  in 
transit  or  purchased,  or  provided  with  a  viewtn' 
transit,  between  loyal  and  disloyal  State«,  and  es  | 
pecially  to  property  lorming  the  subject  of  commer 
cial  intercourse.  Such  property,  whenever  found, 
IS  liable  to  seizure,  and  the  only  redress  ofpartie;- 
who  think  themselves  aggrieved  is  by  appeal  lo  tbej 
Secretary  of  the  Treasury,  who  abne  is  invested  by 
law    with  the  power  of  mitigation    and   remission 

The  first  section  of  the  Act  approved  August  6ih 
declares  that  if  any  person  or  persons,  bis,  her,  or 
their  aeents,  attorneys  or  employees,  shall  purchase 
or  ac'^uire,  sell  or  give  any  property,  of  whatsoever 
kind  or  description,  with  intent  to  use  or  employ  the 
same,  or  suffer  the  same  to  be  used  or  employed 
in  aiding  or  abetiing,or  promoting  such  insurrection, 
or  any  person  or  persons  engaged  therein,'  or  it 
any  person  or  persons,  being  the  owners  of  any 
such  property,  shall  knowingly  use  or  employ,or 
suffer  the  use  or  employment  of  the  same  as  afore- 
said, all  such  property  is  hereby  declared  to  be 
l»wlully  subject  of  prize  and  capture  wherever 
found. 


No  doubt  can  be  entertained  that  this  section 
w'as  well  considered,  and  that  its  operation  was 
intended  to  be  limited  to  property  used  in  further- 
ance of  insurri  ction  only. 

Seizures  under  the  Act  of  July  13th  should  be 
made  by  the  olficers.  or  under  the  direction  of  the 
officers  of  the  Tr<  nsury  Department,  and  all  District 
jAttorneys  and  Marshals  of  the  United  Slates  should 
jafford  all  pr.iciieable  counsel  and  aid  in  the  ' 
jexec^tion  ol  the  law. 

Seizures  under  the  Act  of  August  6th  should  be 
'made  by  the  Marshal  of  the  di>trict  in  which  such 
properly  maybe  lound,  under  the  general  or 
Ipariicubir  direciion  of  the  District  Attorney  orother 
isiipenor  authority. 

j  For  such  seizure  there  is  no  power  of  mitigation 
:or  omission  in  the  Secretary  of  the  Treasury,  but 
[the  Di>tricl  Attorney  or  other  superior  authority, 
may  direct  the  discontinuance  of  any  proceeding 
in  relation  thereto,  and  the  restoration  of  the 
properly  seized 

It  will  be  seen  from  an  inspection  of  these 
jprovisions  of  the  Acts  of  Congress  that  no  property 
is  confiscated  or  subjeciedto  forfeiture  except  such 
as  i.s  in  transit  to  or  Irom  insurrectionary  States, 
or  used  for  the  promotion  of  the  insurrection. 

Real  estate,  bonds,  promissory  notes,  moneys  on 
deposit,  and  the  like,  are  not  therefore  subject  to 
seizure  and  confiscation  in  the  absence  of  evidence 
of  such  unlawful  use. 

All  officers,  while  vigilant  in  the  prevention  of 
the  conveyance  of  property  to  or  from  insurrection- 
ary States,  or  the  use  of  it  for  insurrectionary 
purposes,  are  expected  to  be  carelul  in  avoiding 
unnecessary  vexation  and  costs  by  seizures  not 
warranted  by  law. 

S.  P.  CHASE,  Secretary  of  the  Treasury. 


'U.-^., 


i.  ...e: 


vie        --. 
and  ^) 

Lomm^ ,' 


